UNITED STATES COURT OF APPEALS 

 TENTH CIRCUIT

JOCK SHANE DECEMBER,

 Plaintiff–Appellant,

v.

UTAH DEPARTMENT OF 

CORRECTIONS; FNU GARDENER; 

FNU BURNHAM,

Defendants–Appellees.

No. 13-4081

(D.C. No. 2:13-CV-00094-DAK)

(D. Utah)

ORDER AND JUDGMENT*

Before LUCERO, McKAY, and MURPHY, Circuit Judges. 

 Jock December, a Utah prisoner proceeding pro se, appeals the dismissal of his 42 

U.S.C. § 1983 suit. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. 

 

*

 After examining appellant’s brief and the appellate record, this panel has 

determined unanimously that oral argument would not materially assist the determination 

of this appeal. See Fed. R. App. P. 34(a)(2) and 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

August 27, 2013

Elisabeth A. Shumaker 

Clerk of Court
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I

 According to December’s § 1983 complaint, he injured his neck while in prison. 

Beginning in April 2011, December filed a series of grievances through the Utah 

Department of Corrections administrative review process, alleging that a staff doctor had 

refused to let him see a specialist, incorrectly diagnosed December’s condition, and 

replaced December’s prescription for pain medication with an ineffective prescription for 

sleeping medication. After exhausting prison grievance procedures, December filed suit 

in federal court, alleging that prison officials were deliberately indifferent to his neck 

injury in violation of his constitutional right to be free from cruel and unusual 

punishment. 

The district court granted December’s motion for leave to proceed in forma 

pauperis (“IFP”) in a February 7, 2013 order, but noted that under 28 U.S.C. 

§ 1915(b)(1), December must pay “an initial partial filing fee of 20 percent of the greater 

of – (A) the average monthly deposits to [his inmate] account; or (B) the average monthly 

balance in [his inmate] account for the 6-month period immediately preceding the filing 

of the complaint.” Id. Under this formula, the district court ordered December to pay an 

initial partial filing fee of one dollar or “show[] he has no way to pay it” within thirty 

days. It also ordered December to grant consent for automatic deductions of the balance 

of the filing fee from his inmate account. On April 15, 2013, after determining that 

December had not complied with the IFP order, the district court dismissed his complaint 
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without prejudice. December timely appealed. 

II

 On appeal, December claims the district court erred in dismissing his case for 

failure to comply with the IFP order. A district court may sua sponte dismiss an action 

for “fail[ure] . . . to comply with . . . a court order.” Fed. R. Civ. P. 41(b); see Olsen v. 

Mapes, 333 F.3d 1199, 1204 n.3 (10th Cir. 2003). We review a district court’s dismissal 

for failure to comply with a court order for abuse of discretion. See Cosby v. Meadors, 

351 F.3d 1324, 1326 (10th Cir. 2003). Although a district court must consider certain 

criteria before dismissing an action with prejudice, “[e]mploying Rule 41(b) to dismiss a 

case without prejudice . . . allows the plaintiff another go [at the case]; accordingly, a 

district court may, without abusing its discretion, enter such an order without attention to 

any particular procedures.” Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 

1162 (10th Cir. 2007). 

The district court gave December an adequate opportunity to comply with its IFP 

order by allowing him thirty days to either pay the one dollar fee or show cause why he 

could not do so. It specifically warned December that “the complaint will be dismissed” 

if he failed to comply. On April 15, 2013—well past the thirty-day deadline—the district 

court dismissed December’s complaint without prejudice because he had not complied 

with the order.

In a letter filed after the order of dismissal, December claimed that he had sent the 
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district court statements from his inmate account showing a balance of less than one 

dollar, but that they were returned for failure to include his case number. However, this 

letter was filed more than sixty days after the district court’s February 7 order, and 

December does not explain why he failed to notify the court of any difficulties within the 

thirty-day deadline. December also notes that he submitted a one dollar partial filing fee 

to the district court on June 3, 2013, almost two months after his suit’s dismissal and after 

he filed a notice of appeal. But the district court had already been divested of jurisdiction 

at that point. See Warren v. Am. Bankers Ins. of Fla., 507 F.3d 1239, 1242 (10th Cir. 

2007) (district court generally loses jurisdiction when notice of appeal is filed). We 

conclude that the district court did not abuse its discretion in dismissing December’s 

claim without prejudice. 

 December also claims that the district court should have appointed him counsel. 

We review a district court’s order denying the appointment of counsel in a civil case 

under the deferential abuse of discretion standard. See Hill v. SmithKline Beecham 

Corp., 393 F.3d 1111, 1115 (10th Cir. 2004). We will reverse a district court’s decision 

only if “the lack of counsel results in fundamental unfairness.” Id. (quotation omitted). 

December notes that he proceeds pro se and has no legal training, but these general 

statements are insufficient to establish that this is one of the “extreme cases” warranting 

reversal based on the district court’s decision not to appoint counsel. Id. (quotation 

omitted). 
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III 

 For the foregoing reasons, the district court’s dismissal without prejudice is 

AFFIRMED. December’s motion to proceed in forma pauperis is GRANTED. 

 Entered for the Court 

 Carlos F. Lucero 

 Circuit Judge