Witherspoon v. Wyandotte County et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DARSHAWN L. WITHERSPOON,
Plaintiff,
v. 	CASE NO. 26-3079-JWL
WYANDOTTE COUNTY, et al.,
Defendants.
MEMORANDUM AND ORDER
Plaintiff brings this pro se civil rights case under 42 U.S.C. § 1983. At the time of filing,
Plaintiff was in custody at the Wyandotte County Detention Center in Kansas City, Kansas.
Plaintiff alleges that a deputy alleged that he felt threatened because Plaintiff was talking in his
cell. (Doc. 1, at 1.) 	Plaintiff claims that something is hooked up to him from a tazer, causing him
to hear voices. Id. at 2. Plaintiff seeks $3,000,000 “because it has ruin[ed] [his] life in so many
ways and it is still determental [sic] to [him].” Id. at 5.
On April 3, 2026, the Court entered a Memorandum and Order (Doc. 2) (“M&O”) finding
that Plaintiff is subject to the “three-strikes” provision under 28 U.S.C. § 1915(g), and denying
Plaintiff leave to proceed in forma pauperis. 	The Court granted Plaintiff until May 1, 2026, to
submit the $405 filing fee. The M&O provides that “[t]he failure to submit the fee by that date
will result in the dismissal of this matter without prejudice and without additional prior notice.”
(Doc. 2, at 3.) Plaintiff has failed to pay the filing fee by the Court’s deadline.
The Court’s M&O was mailed to Plaintiff at his current address of record and was returned
as undeliverable, with a notation that Plaintiff had left the facility. (Doc. 3.) The Court’s Local
Rules provide that “[e]ach attorney or pro se party must notify the clerk of any change of address
or telephone number.” 	D. Kan. Rule 5.1(b)(3). The Federal Rules of Civil Procedure provide that
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a paper is served by “mailing it to the person’s last known address—in which event service is
complete upon mailing.” Fed. R. Civ. P. 5(b)(2)(C). Plaintiff has failed to provide the Court with
a Notice of Change of Address.
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. 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 this action is dismissed
without prejudice pursuant to Fed. R. Civ. P. 41(b).
IT IS SO ORDERED.
Dated May 4, 2026, in Kansas City, Kansas.
S/ John W. Lungstrum
JOHN W. LUNGSTRUM
UNITED STATES DISTRICT JUDGE
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