Jones v. United States Patent and Trademark Office

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

JOSEPH LEE JONES,

Plaintiff,

v. CASE NO. 25-3070-JWL

UNITED STATES PATENT AND TRADEMARK OFFICE,

Defendant.

MEMORANDUM AND ORDER This matter is a civil action seeking to compel various actions by the United States Patent and Trademark Office. Plaintiff, who is currently in custody at the Douglas County Jail in Lawrence, Kansas (“DCJ”), proceeds pro se. The Court entered an order (Doc. 4) denying Plaintiff leave to proceed in forma pauperis, finding Plaintiff is subject to the “three-strikes” provision under 28 U.S.C. § 1915(g). The Court examined the Complaint and found no showing of imminent danger of serious physical injury. The Court granted Plaintiff until May 22, 2025, to submit the $405.00 filing fee. Plaintiff filed a motion to reconsider (Doc. 5), which was denied on May 1, 2025 (Doc. 6). Plaintiff then filed a notice of interlocutory appeal (Doc. 7). The Court has considered the notice of interlocutory appeal and finds no grounds to certify it under 28 U.S.C. § 1292(b). As stated in § 1292(b), the filing of an application for interlocutory appeal “shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.” 28 U.S.C. § 1292(b). There has been no order staying this matter, and Plaintiff has failed to pay the filing fee by the deadline set forth in the three-strikes order. Rule 41(b) of the Federal Rules of Civil Procedure “authorizes a district court, upon a defendant’s motion, to order the dismissal of an action for failure to prosecute or for failure to comply with the Federal Rules of Civil Procedure or ‘a court order.’” Young v. U.S., 316 F. App’x 764, 771 (10th Cir. 2009) (citing Fed. R. Civ. P. 41(b)). “This rule has been interpreted as

permitting district courts to dismiss actions sua sponte when one of these conditions is met.” Id. (citing Link v. Wabash R.R. Co., 370 U.S. 626, 630–31 (1962); Olsen v. Mapes, 333 F.3d 1199, 1204 n.3 (10th Cir. 2003)). “In addition, it is well established in this circuit that a district court is not obligated to follow any particular procedures when dismissing an action without prejudice under Rule 41(b).” Young, 316 F. App’x at 771–72 (citations omitted). Plaintiff has failed to pay the filing fee by the deadline set forth in the Court’s order and has failed to make a showing of imminent danger of serious physical injury. As a consequence, the Court dismisses this action without prejudice pursuant to Rule 41(b) for failure to comply with court orders.

IT IS THEREFORE ORDERED BY THE COURT that the Court declines to certify Plaintiff’s interlocutory appeal (Doc. 7). IT IS FURTHER ORDERED that this action is dismissed without prejudice pursuant to Fed. R. Civ. P. 41(b). The Clerk is directed to transmit a copy of this order to the Tenth Circuit Court of Appeals. IT IS SO ORDERED. Dated June 3, 2025, in Kansas City, Kansas. S/ John W. Lungstrum JOHN W. LUNGSTRUM UNITED STATES DISTRICT JUDGE