UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

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DAWAUNE ELLIS, II, 

 Plaintiff - Appellant, 

v. 

THE STATE OF COLORADO MENTAL 

HEALTH HOSPITAL IN PUEBLO, 

SARA ACKERMAN, and FEERLYN 

WHITAKER, 

 Defendants - Appellees. 

No. 24-1166 

(D.C. No. 1:24-CV-00293-LTB) 

(D. Colo.) 

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ORDER AND JUDGMENT*

_________________________________ 

Before PHILLIPS, BRISCOE, and CARSON, Circuit Judges. 

_________________________________ 

Plaintiff Dawaune Ellis II, a resident of the Colorado Mental Health Institute 

at Pueblo (CMHIP) who is appearing pro se, appeals from the district court’s 

dismissal of his pro se civil rights complaint. Exercising jurisdiction pursuant to 

28 U.S.C. § 1291, we affirm the judgment of the district court. 

* 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

July 23, 2024

Christopher M. Wolpert 

Clerk of Court

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I 

On January 29, 2024, Mr. Ellis initiated these proceedings by filing a pro se 

complaint for violation of civil rights, an application to proceed without prepayment 

of fees or costs, and a motion for temporary restraining order. Mr. Ellis alleged in 

his complaint that he was bringing suit under 42 U.S.C. § 1983 against CMHIP and 

various employees at CMHIP for due process violations, cruel and unusual 

punishment, deliberate indifference, neglect, and denial of his right of access to the 

courts. 

On January 31, 2024, the magistrate judge issued an order noting that both 

Mr. Ellis’s complaint and his motion to proceed without prepayment of fees and costs 

were not on the proper forms and that the motion was also missing a certified copy of 

Mr. Ellis’s trust fund statement for the six-month period preceding his filing. The 

magistrate judge ordered Mr. Ellis to cure these deficiencies within thirty days and 

advised him that his failure to do so would result in the dismissal of the action 

without prejudice. 

On February 22, 2024, Mr. Ellis filed his complaint on a prisoner complaint 

form. He also filed a motion for leave to proceed without prepayment of costs and 

fees on an official court form. He did not, however, include a certified copy of his 

trust fund statement or any other proof of his financial situation. 

On March 8, 2024, the district court dismissed the action without prejudice 

pursuant to Federal Rule of Civil Procedure 41(b) “for failure to comply with a Court 

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order and failure to prosecute.” R. at 125. Judgment was entered in the case that 

same day. 

Mr. Ellis filed a motion for reconsideration. He noted in the motion that he 

had sent a letter to the court stating that he did not have a prisoner trust fund 

statement account because he was a patient at CMHIP and not a prisoner. The 

district court denied Mr. Ellis’s motion for reconsideration, noting it had conducted 

an online inmate search and determined that Mr. Ellis was “currently in the custody 

of the Denver Sheriff’s Department, despite being . . . held at” CMHIP. Id. at 139 

(citing https://denvergov.org/inmatesearch/details/2018-317290/0000793443). The 

district court also noted that “because the action was dismissed without prejudice, 

and [Mr. Ellis] c[ould] initiate a new action,” there was “no basis for reopening the 

case.” Id. 

Mr. Ellis now appeals. 

II 

We review a dismissal under Federal Rule of Civil Procedure 41(b) for an 

abuse of discretion. See Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 

1161 (10th Cir. 2007). Rule 41(b) allows for the involuntary dismissal of an action 

“[i]f the plaintiff fails to prosecute or to comply with . . . a court order.” Fed. R. Civ. 

P. 41(b). 

Here, Mr. Ellis asks us to “reopen” his case and “remove the dismissal so” he 

“can bring other cases by waiver of fees.” Aplt. Br. at 4. We decline to do so. Mr. 

Ellis does not dispute that he is an inmate in the general custody of the Denver 

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Sheriff’s Department and there is no indication in the record that he has made any 

attempt to contact the Denver Sheriff’s Department and obtain a prisoner trust fund 

account statement. As a result, we conclude the district court did not abuse its 

discretion in dismissing this action due to Mr. Ellis’s failure to comply with the 

magistrate judge’s order directing him to provide a prisoner trust fund account 

statement to support his motion to proceed without prepayment of costs and fees. 

III 

The judgment of the district court is affirmed. Mr. Ellis’s motion for leave to 

proceed on appeal in forma pauperis is DENIED. 

Entered for the Court 

Mary Beck Briscoe 

Circuit Judge 

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