Leon L. Burdine v. (FNU) Smith, et al.

• Court: District Court, D. Kansas
• Decided: March 9, 2026
• Docket: 5:26-cv-03010
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

LEON L. BURDINE,

Plaintiff,

v. CASE NO. 26-3010-JWL

(FNU) SMITH, et al.,

Defendants.

MEMORANDUM AND ORDER

This is a pro se civil action brought by Plaintiff Leon L. Burdine while he was incarcerated at the Cowley County Jail in Winfield, Kansas. It began on January 15, 2026, when the Court received from Plaintiff a complaint. (Doc. 1.) Because Plaintiff neither paid the required filing fee nor moved for leave to proceed in forma pauperis—meaning without prepaying the full fee—the Court issued a notice of deficiency (“NOD”) directing Plaintiff to do so on or before February 17, 2026 “or this action may be dismissed without prejudice and without further notice.” (Doc. 2.) On January 29, 2026, the Court received from Plaintiff a motion for leave to proceed in forma pauperis (Doc. 3), but Plaintiff did not submit the financial information required to support his motion. Thus, the Court issued a second NOD granting Plaintiff until March 2, 2026 to do so. Id. The second NOD expressly warned Plaintiff that if he “fail[ed] to comply within the prescribed time, . . . this action may be dismissed without further notice for failure to comply with this court order.” Id. at 2. On February 2, 2026, the first NOD was returned to the Court marked “Return to Sender[,] Not Deliverable as Addressed[,] Unable to Forward.” (Doc. 5.) On February 10, 2026, the second NOD was returned to the Court marked with the same information.1 (Doc. 6.) The deadline set in the second

1 The Court further notes that the repeated return of mail sent to Plaintiff at his address of record indicates that Plaintiff has failed to comply with Local Rule 5.1(b)(3), which requires that “[e]ach attorney or pro se party must notify the clerk of any change of address or telephone number.” See D. Kan. 5.1(b)(3). NOD has now passed and Plaintiff has filed nothing further in this matter. Under Rule 41(b) of the Federal Rules of Civil Procedure, a district court may dismiss an action “if the plaintiff fails to prosecute or to comply with these rules or a court order.” Fed. R. Civ. P. 41(b); See also Olsen v. Mapes, 333 F.3d 1199, 1204 n.3 (10th Cir. 2003) (noting that Rule 41(b) “has long been interpreted to permit courts to dismiss actions sua sponte for a plaintiff’s failure . . . to comply with the . . . court’s orders”). Because Plaintiff has failed to comply with the second NOD and has failed to file anything further in this matter, the Court concludes that this matter should be dismissed without prejudice under Rule 41(b).

IT IS THEREFORE ORDERED THAT this matter is dismissed without prejudice under Fed. R. Civ. P. 41(b) for failure to comply with a court order. The motion for leave to proceed in forma pauperis (Doc. 3) is therefore denied as moot. IT IS SO ORDERED. Dated on this 9th day of March, 2026, in Kansas City, Kansas. s/ John W. Lungstrum JOHN W. LUNGSTRUM United States District Judge