                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                            FOR THE TENTH CIRCUIT                             July 9, 2019
                        _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
 JOSE JOSEPH BANKS,

       Petitioner - Appellant,

 v.                                                         No. 19-1178
                                                   (D.C. No. 1:19-CV-00582-LTB)
 ANDRE MATEVOUSIAN, Complex                                   (D. Colo.)
 Warden, ADX Florence,

       Respondent - Appellee.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before CARSON, BALDOCK, and MURPHY, Circuit Judges.
                  _________________________________

      In February 2019, Petitioner Jose Joseph Banks filed an application for a writ of

habeas corpus pursuant to 28 U.S.C. § 2241 and a motion for leave to proceed in forma

pauperis pursuant to 28 U.S.C. § 1915. On March 1, 2019, the magistrate judge

entered an order noting Petitioner’s in forma pauperis motion was deficient because

the “account statement [Petitioner] submitted is not certified and does not show the

current balance in [Petitioner’s] prisoner account as of the date he filed this action.”


      *
        After examining the briefs and appellate record, this panel has determined
unanimously 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
ROA at 75. The magistrate judge explained the petition would be dismissed within

thirty days if Petitioner did not cure the deficiencies. On March 11, Petitioner filed an

Inmate Account Statement, revealing he had $90.14 in his account. On March 26, the

district court denied Petitioner’s in forma pauperis motion because Petitioner had

sufficient funds to pay the $5.00 filing fee. The court ordered that Petitioner “shall

pay the $5.00 filing fee within thirty days from the date of this Order if he wishes to

pursue his claims in this action.” ROA at 79. Otherwise, “the action will be dismissed

without further notice.” Id. After over a month of complete silence and inactivity from

Petitioner, the district court indeed dismissed the action without prejudice for failure

to prosecute pursuant to Fed. R. Civ. P. 41(b). In its order dismissing the action, the

court also certified pursuant to 28 U.S.C. § 1915(a)(3) that any appeal of the order

would not be taken in good faith and, thus, denied in forma pauperis status for purposes

of appeal. Petitioner filed a timely notice of appeal, arguing “he had not intentionally

refused or withheld owed filing fees but were [sic] in fact diligent, more than willing

and made every attempt at meeting said payment.” Op. Br. at 1.

      A district court may dismiss an action sua sponte “[i]f the plaintiff fails to

prosecute or to comply with . . . a court order.” Fed. R. Civ. P. 41(b); Olsen v. Mapes,

333 F.3d 1199, 1204 n.3 (10th Cir. 2003). We review such a dismissal for abuse of

discretion. Olsen, 333 F.3d at 1204. Petitioner clearly failed to comply with the court’s

order. The responsibility to timely make the payment and to communicate with the

court lies with Petitioner, not with the ADX staff or with a friend. Because Petitioner

failed to pay the filing fee by the court’s deadline and failed to otherwise respond to

                                           2
the court’s order for over thirty days, the court did not abuse its discretion in dismissing

the action.   We highlight to Petitioner that his action was dismissed “without

prejudice”—meaning he may refile and pursue his § 2241 application in a new case

provided he follows the lower court’s orders.

       Additionally, Petitioner filed a motion for leave to proceed in forma pauperis

on appeal. The district court was quite right in its order certifying any appeal would

not be taken in good faith. Accordingly, we DISMISS this appeal and DENY his

motion for leave to proceed in forma pauperis.


                                              Entered for the Court


                                              Bobby R. Baldock
                                              Circuit Judge




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