Appellate Case: 19-2203     Document: 010110350085      Date Filed: 05/20/2020    Page: 1
                                                                                  FILED
                                                                      United States Court of Appeals
                       UNITED STATES COURT OF APPEALS                         Tenth Circuit

                              FOR THE TENTH CIRCUIT                           May 20, 2020
                          _________________________________
                                                                         Christopher M. Wolpert
                                                                             Clerk of Court
  CHARLES D.J. BARNES,

        Plaintiff - Appellant,

  v.                                                         No. 19-2203
                                                 (D.C. No. 1:19-CV-00536-MV-KRS)
  UNITED STATES DISTRICT COURT;                               (D. N.M.)
  NEW MEXICO CORRECTIONAL
  FACILITY; EDDY COUNTY
  DETENTION CENTER; PNM,

        Defendants - Appellees.
                       _________________________________

                              ORDER AND JUDGMENT*
                          _________________________________

 Before MATHESON, KELLY, and EID, Circuit Judges.
                   _________________________________

       Charles Barnes, a state prisoner appearing pro se, appeals the district court’s

 dismissal of his complaint under Federal Rule of Civil Procedure 41(b) for failure to

 prosecute and to comply with court orders. He also requests leave to proceed in




       *
         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 This order and judgment is not binding
 precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Appellate Case: 19-2203    Document: 010110350085        Date Filed: 05/20/2020       Page: 2



 forma pauperis (“ifp”). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm

 the dismissal of his complaint and deny his ifp request.1

                                  I. BACKGROUND

       Mr. Barnes filed this action in the United States District Court for the District

 of New Mexico, alleging violations of his civil rights in state court proceedings and

 while incarcerated in state prison. He did not pay the court filing fee, see 28 U.S.C.

 § 1914(a), or move to proceed ifp, see id. § 1915(a). The district court entered an

 order directing him to pay the fee or submit an ifp application within 30 days. The

 court instructed the clerk’s office to send Mr. Barnes the proper application form. It

 also advised Mr. Barnes that failure to cure this deficiency could result in dismissal.

       Mr. Barnes did not comply with the order. He moved for leave to proceed on

 appeal without prepayment of costs rather than submit the ifp form the court

 provided. He also sent the court three letters that claimed they included payments for

 the filing fee. None of the letters included payment.

       The district court ordered Mr. Barnes to show cause why his complaint should

 not be dismissed for failure to comply with the court’s earlier order. Despite having

 more than two months to do so, Mr. Barnes did not address his failure to pay the

 filing fee or submit the proper ifp application. He instead filed a request for an




       1
          Because Mr. Barnes is pro se, we construe his filings liberally, but we do not
 act as his advocate. Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).

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 evidentiary hearing and various documents concerning the merits of his alleged

 claims.

       The district court dismissed Mr. Barnes’s complaint without prejudice under

 Federal Rule of Civil Procedure 41(b) for failure to prosecute and to comply with

 court orders. It dismissed as moot his request for an evidentiary hearing. Mr. Barnes

 timely appealed.

                                   II. DISCUSSION

                                 A. Legal Background

       Federal Rule of Civil Procedure 41(b) authorizes a district court to sua sponte

 dismiss an action for failure “to prosecute or to comply with [the Federal Rules of

 Civil Procedure] or a court order.” Fed. R. Civ. P. 41(b); see Rogers v. Andrus

 Transp. Servs., 502 F.3d 1147, 1151 (10th Cir. 2007). When, as here, a district court

 dismisses a complaint under Rule 41(b) without prejudice, it “need not follow any

 particular procedures.” Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., 497

 F.3d 1135, 1143 n.10 (10th Cir. 2007) (quotations omitted).2

       We review a Rule 41(b) dismissal for an abuse of discretion. See Nasious v.

 Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1161 (10th Cir. 2007). “[U]nder what




       2
         Rule 41(b) dismissals with prejudice, by contrast, require application of the
 multifactor test set forth in Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir.
 1992). See Ecclesiastes 9:10-11-12, 497 F.3d at 1143-44; Olsen v. Mapes, 333
 F.3d 1199, 1204 (10th Cir. 2003).

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 circumstances such a dismissal would be justified, or to the contrary found to be

 abuse of discretion, must depend on the procedural history of the particular case[]

 involved.” Rogers, 502 F.3d at 1152 (quotations omitted).

                                       B. Analysis

       Mr. Barnes has not shown the district court abused its discretion in dismissing

 his complaint. His brief on appeal discusses the merits of his underlying claims. See

 Aplt. Br. at 2-4. It does not address his failure to comply with the court’s orders.

       Mr. Barnes did not pay the filing fee or submit an ifp application, as required

 to proceed in district court. See 28 U.S.C. §§ 1914(a), 1915(a). The district court

 warned Mr. Barnes this deficiency could warrant dismissal, supplied the proper ifp

 application form, and provided him ample opportunity to submit the form or pay the

 fee. Mr. Barnes did neither. The court did not abuse its discretion in dismissing his

 complaint without prejudice for failure to comply with its orders. See Ecclesiastes

 9:10-11-12, 497 F.3d at 1143; Gonzales v. Bernalillo Cty. Dist. Ct., 640 F. App’x

 759, 761 (10th Cir. 2016) (unpublished) (affirming Rule 41(b) dismissal without

 prejudice when plaintiff failed to comply with court’s order to submit ifp materials

 under § 1915(a)).3




       3
          Although not precedential, we find the reasoning of this unpublished opinion
 instructive. See 10th Cir. R. 32.1 (“Unpublished decisions are not precedential, but
 may be cited for their persuasive value.”); see also Fed. R. App. P. 32.1.

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        Because Mr. Barnes has not advanced any “reasoned, nonfrivolous argument” in

 support of his appeal, we deny his request to proceed ifp. Lister v. Dep’t of the Treasury,

 408 F.3d 1309, 1312 (10th Cir. 2005).

                                   III. CONCLUSION

        We affirm the district court’s dismissal of Mr. Barnes’s complaint and deny

 his ifp request.




                                              Entered for the Court


                                              Scott M. Matheson, Jr.
                                              Circuit Judge




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