UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ DAWAUNE ELLIS, II, Plaintiff - Appellant,

v. THE STATE OF COLORADO MENTAL HEALTH HOSPITAL IN PUEBLO, SARA ACKERMAN, and FEERLYN WHITAKER, Defendan t s - Appellees. No. 24-1166 (D.C. No. 1:24- CV-00293-LTB) (D. Colo.)

________________ _________________ 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 compla int. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the judgment of the district court.

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not ma terially 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve 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 Appellate Case: 24-1166 Document: 010111083398 Date Filed: 07/23/2024 Page: 12 I On January 29, 2024, Mr. Ellis initiate d these proceedings by filing a pro se complaint for violation of ci vil rights, an application to proceed without prepayment of fees or costs, and a moti on for temporary restraining or der. Mr. Ellis alleged in his complaint that he was bringing suit under 42 U.S.C. § 198 3 against CMHIP and various employees at CMHIP for due pr ocess violations, cruel and unusual punishment, deliberate indifference, neglect, and denial of his right of access to the
courts. On January 31, 2024, the magistrate j udge issued an order noting that both Mr. Ellis’s complaint and his motion to proceed without prep ayment 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 si x-month period preceding his filing. The magistrate judge ordered Mr. El lis to cure these deficienci es within thirty days and advised him that his failure to do so w ould result in the dismissal of the action without prejudice. On February 22, 2024, Mr. Ellis file d his complaint on a prisoner complaint form. He also filed a moti on 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 Appellate Case: 24-1166 Document: 010111083398 Date Filed: 07/23/2024 Page: 23 order and failure to prosecute.” R. at 125. Judgment was entere d 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 c ourt stating that he did not have a prisoner trust fund statement account because he was a patien t at CMHIP and not a prisoner. The district court denied Mr. E llis’s motion for reconsidera tion, noting it had conducted an online inmate search and determined that Mr. Ellis was “currently in the custody of the Denver Sheriff’s Department, de spite being . . . held at” CMHIP. Id. at 139 (citing https://denvergov.org/inmatesearch /details/2018-317290/0000793443). The district court also noted th at “because the action was dismissed without prejudice, and [Mr. Ellis] c[ould] init iate a new action,” there wa s “no basis for reopening the case.” Id. Mr. Ellis now appeals.
II We review a dismissal under Federal Ru le 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 pros ecute or to comply w ith . . . a court orde r.” Fed. R. Civ. P. 41(b). Here, Mr. Ellis asks us to “reopen” his case and “r emove the dismissal so” he “can bring other cases by waiver of fees.” Ap lt. 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 Appellate Case: 24-1166 Document: 010111083398 Date Filed: 07/23/2024 Page: 34 Sheriff’s Department and ther e is no indication in the reco rd that he has made any attempt to contact the Denver Sheriff’s De partment and obtain a prisoner trust fund account statement. As a resu lt, we conclude the distri ct court did not abuse its discretion in dismissing this action due to Mr. Ellis’s failure to comply with the magistrate judge’s order di recting 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 fo rma pauperis is DENIED.

Entered for the Court

Mary Beck Briscoe Circuit Judge Appellate Case: 24-1166 Document: 010111083398 Date Filed: 07/23/2024 Page: 4