Apodaca v. Does, No. 18-2069 (10th Cir. 2019)

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UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT _________________________________ VICTOR ANDREW APODACA, SR., FILED United States Court of Appeals Tenth Circuit May 24, 2019 Elisabeth A. Shumaker Clerk of Court Plaintiff - Appellant, v. JOHN DOES, Inmates of New Mexico Corrections Department, Prisoners; NEW MEXICO CORRECTIONS DEPARTMENT; DAVID JABLONSKI; GEO GROUP, INC.; DAVID BOWEN; FNU GONZALES; FNU VIGIL; REGINA TRUJILLO, Library Paralegal; AMBERLY WARD; FNU NEWTON; JOHN/JANE DOE; FNU BROCK, No. 18-2069 (D.C. No. 1:18-CV-00108-MV-SMV) (D. N.M.) Defendants - Appellees. _________________________________ ORDER AND JUDGMENT* _________________________________ Before BRISCOE, MATHESON, and EID, Circuit Judges. _________________________________ Pro se federal prisoner Victor Andrew Apodaca, Sr. appeals from the district court’s order dismissing his prisoner civil rights complaint for failure to prosecute * After examining the briefs and appellate record, this panel has determined that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. and comply with the court’s order. Exercising jurisdiction under 28 U.S.C. § 1291, we DISMISS Mr. Apodaca’s appeal as frivolous, DENY his motion for leave to proceed in forma pauperis on appeal, and impose a “strike” under 28 U.S.C. § 1915(g). I. Mr. Apodaca is currently incarcerated at the Northeast New Mexico Detention Facility. In February 2018, he filed a complaint asserting, inter alia, that prison officials violated his constitutional rights by confiscating his property during a “shake down” at the facility. On the same day he filed the complaint, Mr. Apodaca also submitted a motion seeking leave to proceed in forma pauperis. The district court granted Mr. Apodaca’s leave to proceed in forma pauperis. As part of the order, the court ordered Mr. Apodaca to pay a partial fee of $13.75, warning Apodaca that the case could be dismissed if no payment was made. Mr. Apodaca did not pay the fee or otherwise respond to the order. Accordingly, on April 24, 2018, the district court issued an order dismissing the complaint without prejudice under Fed. R. Civ. P. 41(b) for failure to prosecute and comply with court orders. Order of Dismissal at 1. Because the defendants were never served or summoned, there are no appellees in this appeal. This appeal followed. II. Mr. Apodaca challenges the district court’s dismissal of his complaint and its assessment of a filing fee. We construe the filings of a pro se litigant liberally, see Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam), but our role is not to serve as 2 his advocate, see Gallagher v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009). Per 28 U.S.C. § 1915(b)(1), prisoners bringing civil rights actions must pay the filing fee. 28 U.S.C. § 1915(b)(1) sets forth the standard and allows courts to “assess” the payment of partial fee (recognizing most prisoners can only pay the fee in partial payments). We evaluate a dismissal under Rule 41(b) for abuse of discretion. Nasious v. Two Unknown B.I.C.E. Agents, at Arapahoe Cty. Justice Ctr., 492 F.3d 1158, 1161 (10th Cir. 2007) (citations omitted). Because Mr. Apodaca failed to submit payment by the deadline and failed to respond to the court order otherwise, this court finds that the district court did not abuse its discretion in dismissing Apodaca’s case. See Olsen v. Mapes, 333 F.3d 1199, 1204 n.3 (10th Cir. 2003) (“Rule 41(b) . . . has long been interpreted to permit courts to dismiss actions sua sponte for a plaintiff’s failure to prosecute or comply with the . . . court’s orders.”). We also agree that the district court properly assessed a filing fee under 28 U.S.C. § 1915(b)(1). III. Finally, because Mr. Apodaca seeks to proceed in forma pauperis on appeal, we ask whether this appeal is frivolous. A litigant may only proceed in forma pauperis if he shows a “reasoned, nonfrivolous argument on the law and facts in support of the issues raised in the action.” Lister v. Dept. of Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005); see also 28 U.S.C. § 1915(e)(2)(B). Additionally, prisoners who bring frivolous appeals are assessed a strike under the Prison 3 Litigation Reform Act. 28 U.S.C. § 1915(h). Mr. Apodaca failed to make any nonfrivolous argument for reversal of the district court’s decision. IV. Based on the foregoing, we DISMISS Mr. Apodaca’s appeal as frivolous, DENY his motion for leave to proceed in forma pauperis on appeal, and impose a “strike” under 28 U.S.C. § 1915(g). We note that this newly imposed strike is Mr. Apodaca’s third, which means he may not procced in forma pauperis in civil actions before federal courts unless he is under imminent danger of serious physical injury. See 28 U.S.C. § 1915(g). Mr. Apodaca is reminded of his duty to pay the unpaid balance of his filing fees in full immediately. Entered for the Court Allison H. Eid Circuit Judge 4

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