                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                      UNITED STATES COURT OF APPEALS                July 31, 2020
                                                                Christopher M. Wolpert
                                   TENTH CIRCUIT                    Clerk of Court



 WADE LAY,

          Plaintiff - Appellant,

 v.                                                     No. 20-6038
                                                 (D.C. No. 5:17-CV-01224-J)
 OKLAHOMA DEPARTMENT OF                                 (W.D. Okla.)
 CORRECTIONS; JOE ALLBAUGH;
 ODOC Director, OKLAHOMA
 STATE PENITENTIARY; TERRY
 ROYAL, Warden OSP; JERRY
 PERRY, H-Unit, Unit Manager,

          Defendant - Appellee.


                             ORDER AND JUDGMENT *


Before PHILLIPS, MURPHY, and McHUGH, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination




      *
        This order and judgment is not binding precedent except under the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.
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.

      Wade Lay appeals from an order of the United States District Court for the

Western District of Oklahoma. The district court dismissed Lay’s pro se civil

rights complaint for failure to prosecute. Because Lay’s appeal is frivolous

and/or malicious, this court dismisses the appeal pursuant to the provisions of

28 U.S.C. § 1915(e)(2)(B)(i).

      Lay filed the instant civil rights suit, along with a request to proceed in

forma pauperis (“IFP”), in November of 2017. The district court denied Lay’s

request to proceed IFP, concluding Lay had sufficient funds to prepay the $400

filing fee. Despite admitting he had the funds available to pay the district court

filing fee, Lay appealed to this court the district court’s denial of his motion to

proceed IFP. This court affirmed the district court’s denial of Lay’s motion to

proceed IFP. Lay v. Okla. Dep’t of Corr., 746 F. App’x 777, 779 (10th Cir.

2018). Moreover, this court denied Lay’s request to proceed on appeal IFP,

concluding Lay’s appeal was frivolous. Id. at 780. Thereafter, despite several

opportunities to do so, Lay failed to pay the district court filing fee or otherwise

communicate with the district court. Thus, the district court dismissed Lay’s suit

without prejudice for failure to prosecute. See Nasious v. Two Unknown B.I.C.E.

Agents, at Arapahoe County Justice Ctr., 492 F.3d 1158, 1161–62 n.2 (10th Cir.


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2007) (holding that Federal Rule of Civil Procedure 41(b) permits courts to

dismiss actions sua sponte where a plaintiff fails to comply with the Federal Rules

of Civil Procedure or the Court’s orders).

      Lay’s brief on appeal, while prolix, does not contain any meaningful

analysis of the propriety of the district court’s without-prejudice dismissal of his

action. Instead, it argues the merits of the underlying case and conjures up the

existence of some kind of grand conspiracy on the part of the district court and

Oklahoma Department of Corrections to deprive him of his civil rights. Upon de

novo review of the district court’s order of dismissal, Lay’s appellate filings, and

the entire record on appeal, we conclude this appeal is frivolous and, therefore,

his appeal must be dismissed.

      For those reasons set out above, this appeal is DISMISSED pursuant to the

terms of 28 U.S.C. § 1915(e)(2)(B)(i) (providing that “notwithstanding any filing

fee, or any portion thereof that may have been paid, the court shall dismiss [an

IFP proceeding] at any time if the court determines that . . . the action or appeal

is . . . frivolous or malicious”). Given this disposition, all pending motions are

hereby DENIED as moot.

                                             ENTERED FOR THE COURT


                                             Michael R. Murphy
                                             Circuit Judge


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