                                                                                 FILED
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                           August 27, 2013
                                     TENTH CIRCUIT
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court



 JOCK SHANE DECEMBER,

           Plaintiff–Appellant,                              No. 13-4081
                                                   (D.C. No. 2:13-CV-00094-DAK)
 v.                                                           (D. Utah)

 UTAH DEPARTMENT OF
 CORRECTIONS; FNU GARDENER;
 FNU BURNHAM,

           Defendants–Appellees.


                                  ORDER AND JUDGMENT*


Before LUCERO, McKAY, and MURPHY, Circuit Judges.



       Jock December, a Utah prisoner proceeding pro se, appeals the dismissal of his 42

U.S.C. § 1983 suit. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.



       *
         After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2) and 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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
                                               I

       According to December’s § 1983 complaint, he injured his neck while in prison.

Beginning in April 2011, December filed a series of grievances through the Utah

Department of Corrections administrative review process, alleging that a staff doctor had

refused to let him see a specialist, incorrectly diagnosed December’s condition, and

replaced December’s prescription for pain medication with an ineffective prescription for

sleeping medication. After exhausting prison grievance procedures, December filed suit

in federal court, alleging that prison officials were deliberately indifferent to his neck

injury in violation of his constitutional right to be free from cruel and unusual

punishment.

       The district court granted December’s motion for leave to proceed in forma

pauperis (“IFP”) in a February 7, 2013 order, but noted that under 28 U.S.C.

§ 1915(b)(1), December must pay “an initial partial filing fee of 20 percent of the greater

of – (A) the average monthly deposits to [his inmate] account; or (B) the average monthly

balance in [his inmate] account for the 6-month period immediately preceding the filing

of the complaint.” Id. Under this formula, the district court ordered December to pay an

initial partial filing fee of one dollar or “show[] he has no way to pay it” within thirty

days. It also ordered December to grant consent for automatic deductions of the balance

of the filing fee from his inmate account. On April 15, 2013, after determining that

December had not complied with the IFP order, the district court dismissed his complaint
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without prejudice. December timely appealed.

                                               II

       On appeal, December claims the district court erred in dismissing his case for

failure to comply with the IFP order. A district court may sua sponte dismiss an action

for “fail[ure] . . . to comply with . . . a court order.” Fed. R. Civ. P. 41(b); see Olsen v.

Mapes, 333 F.3d 1199, 1204 n.3 (10th Cir. 2003). We review a district court’s dismissal

for failure to comply with a court order for abuse of discretion. See Cosby v. Meadors,

351 F.3d 1324, 1326 (10th Cir. 2003). Although a district court must consider certain

criteria before dismissing an action with prejudice, “[e]mploying Rule 41(b) to dismiss a

case without prejudice . . . allows the plaintiff another go [at the case]; accordingly, a

district court may, without abusing its discretion, enter such an order without attention to

any particular procedures.” Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158,

1162 (10th Cir. 2007).

       The district court gave December an adequate opportunity to comply with its IFP

order by allowing him thirty days to either pay the one dollar fee or show cause why he

could not do so. It specifically warned December that “the complaint will be dismissed”

if he failed to comply. On April 15, 2013—well past the thirty-day deadline—the district

court dismissed December’s complaint without prejudice because he had not complied

with the order.

       In a letter filed after the order of dismissal, December claimed that he had sent the
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district court statements from his inmate account showing a balance of less than one

dollar, but that they were returned for failure to include his case number. However, this

letter was filed more than sixty days after the district court’s February 7 order, and

December does not explain why he failed to notify the court of any difficulties within the

thirty-day deadline. December also notes that he submitted a one dollar partial filing fee

to the district court on June 3, 2013, almost two months after his suit’s dismissal and after

he filed a notice of appeal. But the district court had already been divested of jurisdiction

at that point. See Warren v. Am. Bankers Ins. of Fla., 507 F.3d 1239, 1242 (10th Cir.

2007) (district court generally loses jurisdiction when notice of appeal is filed). We

conclude that the district court did not abuse its discretion in dismissing December’s

claim without prejudice.

       December also claims that the district court should have appointed him counsel.

We review a district court’s order denying the appointment of counsel in a civil case

under the deferential abuse of discretion standard. See Hill v. SmithKline Beecham

Corp., 393 F.3d 1111, 1115 (10th Cir. 2004). We will reverse a district court’s decision

only if “the lack of counsel results in fundamental unfairness.” Id. (quotation omitted).

December notes that he proceeds pro se and has no legal training, but these general

statements are insufficient to establish that this is one of the “extreme cases” warranting

reversal based on the district court’s decision not to appoint counsel. Id. (quotation

omitted).
                                             -4-
                                          III

     For the foregoing reasons, the district court’s dismissal without prejudice is

AFFIRMED. December’s motion to proceed in forma pauperis is GRANTED.

                                        Entered for the Court



                                        Carlos F. Lucero
                                        Circuit Judge




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