                                                                            FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                      January 31, 2012
                         UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                        Clerk of Court
                                     TENTH CIRCUIT



 TYRON JAMES,

           Plaintiff-Appellant,
 v.                                                           No. 11-3330
 RAY ROBERTS, Secretary of                         (D.C. No. 5:11-CV-03129-SAC)
 Corrections, Kansas Department of                            (D. Kan.)
 Corrections, in his individual and official
 capacity; SAM CLINE, Warden,
 Hutchinson Correctional Facility, in his
 individual and official capacity; J. W.
 MARTIN, Correctional Officer,
 Hutchinson Correctional Facility, in his
 individual and official capacity; MARC
 MORGAN, Correctional Officer,
 Hutchinson Correctional Facility, in his
 individual and official capacity; RON
 BIEBERLE, Correctional Officer,
 Hutchinson Correctional Facility, in his
 individual and official capacity; JASON
 PERRY, Correctional Officer, Hutchinson
 Correctional Facility, in his individual and
 official capacity; DON MOORE, Unit
 Team Manager, Hutchinson Correctional
 Facility, in his individual and official
 capacity,

           Defendant-Appellees.



                                  ORDER AND JUDGMENT*


       *
        This order and judgment is not binding precedent, except under the doctrines of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.
Before BRISCOE, Chief Judge, MURPHY and MATHESON, Circuit Judges.



       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,

submitted without oral argument.

       Plaintiff Tyron James, a Kansas state prisoner appearing pro se, filed this 42

U.S.C. § 1983 civil rights action claiming that prison officials violated his constitutional

rights during the course of a prison disciplinary proceeding. The district court dismissed

the complaint without prejudice after James failed, within the time allotted by the district

court in a show cause order, to amend his complaint and pay an initial partial filing fee.

James now appeals. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the

judgment of the district court.

                                              I

       On September 6, 2010, James, while confined at the Hutchinson (Kansas)

Correctional Facility, was placed in administrative segregation for allegedly being

insubordinate and disrespectful during the “morning meal line.” ROA, Vol. 1 at 6. The

following day, September 7, 2010, James was provided with a disciplinary report

outlining his purported misconduct and listing the alleged infractions. On September 15,

2010, a disciplinary hearing was held to consider the charges against him. James was

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apparently removed partway through the hearing because of a dispute between James and

the hearing officer regarding the nature and length of James’s intended cross-examination

of the reporting officer. At the conclusion of the hearing, James was found guilty and

punished with 119 days of disciplinary segregation, a $115 fine, and a restriction of

privileges.

       After exhausting his administrative remedies, James filed a civil action in the

District Court of Reno County, Kansas, challenging his disciplinary conviction. On

March 4, 2011, that court issued an order concluding “that the handling of the

[disciplinary] matter was such that [James] was denied proper process to have someone

on his behalf view the security video [of the alleged infractions] and to at least have a

staff assistant available to conduct appropriate cross examination of the complaining

witness.” Id. at 17. Accordingly, the state court remanded “to the hearing officer for the

purpose of conducting a new [disciplinary] hearing [that] d[id] not violate [James’s] due

process rights.” Id. at 18. On remand, the disciplinary charges against James were

allegedly dropped.

       On July 13, 2011, James initiated these proceedings by filing a 42 U.S.C. § 1983

complaint against seven named prison officials. James’s § 1983 complaint alleged that

the named defendants, who were allegedly involved in the September 2010 disciplinary

charges and/or the disciplinary hearing, violated his constitutional rights under the First,

Eighth, and Fourteenth Amendments to the United States Constitution. The complaint

requested declaratory and injunctive relief, actual and punitive damages, and attorneys’

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fees and costs. Together with his § 1983 complaint, James filed an application to proceed

without prepayment of fees or costs under 28 U.S.C. § 1915. ROA, Vol. 1 at 20.

       On July 19, 2011, the district court issued an order granting James’s application

and “assess[ing] an initial partial filing fee of $25.50.” Id. at 25. In its order, the district

court advised James that he must “pay this initial partial filing fee before [his] action

[could] proceed further, and w[ould] be given [thirty days] to submit the fee to the court.”

Id. at 25-26. The order also advised that James’s “failure to submit the initial fee in the

time allotted m[ight] result in dismissal of th[e] action without further notice.” Id. at 26.

       In that same order, the district court also screened James’s complaint, as required

by 28 U.S.C. § 1915, and concluded that James “ha[d] failed to state a claim of federal

constitutional violation.” Id. at 27. The order, however, gave James “time to show cause

why th[e] action should not be dismissed for failure to state a claim.” Id. at 28. But it

advised James that “[i]f he fail[ed] to show such cause within the time allotted, th[e]

action m[ight] be dismissed without further notice.” Id.

       On August 24, 2011, the district court issued an order dismissing the action

without prejudice, pursuant to Fed. R. Civ. P. 41(b), “due to [James’s] failure to submit

the assessed initial partial filing fee and failure to show cause why this action should not

be dismissed for failure to state a claim.” Id. at 31. The district court noted that “[t]he

time in which [James] was required to comply [with the show cause order of July 19]

ha[d] expired and nothing further ha[d] been submitted by him.” Id. at 30. The district

court entered judgment that same day.

                                               -4-
       The following day, August 25, 2011, the district court received from James a one-

page written response to the July 19, 2011 show cause order. In that response, James

attempted to summarize in two paragraphs the nature of his claims against defendants. In

the certificate of service attached to the response, James alleged that he mailed the

response on August 15, 2011. James did not, however, submit the initial partial filing fee

mandated by the district court.

       On September 7, 2011, James, having received the district court’s order of

dismissal and final judgment, filed a motion for reconsideration. James alleged in his

motion that he “complied with the order that was given by the court on July 19, 2011, by

mailing” both his written response to the show cause order and the mandated partial filing

fee. Id. at 35. In support, James alleged that prison authorities withdrew $25.50 from his

prison account on August 16, 2011. Id. at 35-36. James did not, however, submit any

documentation to support his allegation regarding the withdrawal of funds from his prison

account.

       The district court treated James’s motion as one to alter or amend judgment under

Federal Rule of Civil Procedure 59(e) and denied relief. In doing so, the district court

concluded that James’s response to the show cause order merely restated the allegations

of his original complaint and “allege[d] no facts to support th[o]se bald assertions.” Id. at

42. Consequently, the district court concluded that “even if [it] were to reopen th[e] case

to consider th[e] Response, the action would be dismissed for the same reasons stated in

the court’s prior orders.” Id. at 44. As for James’s assertion that prison authorities

                                             -5-
deducted money from his prison account, the district court noted that “[t]he initial partial

filing fee [still] ha[d] not been received by the court, and [James] ha[d] not presented any

evidence that he caused the fee to be forwarded to th[e] court.” Id. at 42.

       James now appeals.

                                               II

       Federal Rule of Civil Procedure 41(b), the rule relied upon by the district court in

dismissing James’s complaint, provides, in relevant part: “If the plaintiff fails . . . to

comply with [court] rules or a court order, a defendant may move to dismiss the action or

any claim against it.” We have held that a district court may dismiss a case sua sponte

under Rule 41(b). See Rogers v. Andrus Transp. Servs., 502 F.3d 1147, 1151 (10th Cir.

2007). We review a dismissal under Rule 41(b) for an abuse of discretion, asking

whether the district court made “a clear error of judgment or exceed[ed] the bounds of

permissible choice in the circumstances.” Ecclesiastes 9:10-11-12, Inc. v. LMC Holding

Co., 497 F.3d 1135, 1143 (10th Cir. 2007) (citation, internal quotation marks, and

brackets omitted).

       We conclude the district court did not abuse its discretion in dismissing James’s

complaint without prejudice. The record on appeal undisputedly establishes that James

neither paid the initial partial filing fee by the deadline mandated by the district court, nor

provided the district court with any documentation indicating that he had taken any steps

to have prison officials withdraw funds from his prison account for payment of the fee.

Although James has now submitted with his appellate brief a copy of a form indicating

                                               -6-
that he made an account withdrawal request to prison officials on August 15, 2011, James

did not provide the district court with a copy of that form. Moreover, there is no

indication in the record on appeal that the district court clerk’s office has ever received

any filing fee payment in this case. And, even setting aside the filing fee issue, the

record on appeal confirms the district court’s conclusion that James’s response to the

show cause order failed to provide any additional factual details regarding his claims

against the defendants.

       James’s motion for leave to add exhibits to his brief is GRANTED. The judgment

of the district court is AFFIRMED.



                                                   Entered for the Court


                                                   Mary Beck Briscoe
                                                   Chief Judge




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