636 F2d 249 Roberts v. Missouri Division of Employment

636 F.2d 249

John S. ROBERTS, Appellant,
v.
MISSOURI DIVISION OF EMPLOYMENT, Appellee.

No. 80-1942.

United States Court of Appeals,
Eighth Circuit.

Submitted Dec. 24, 1980.
Decided Dec. 31, 1980.

John S. Roberts, pro se.

Jan Bond, Asst. Atty. Gen., Jefferson City, Mo., for appellee.

Before LAY, Chief Judge, GIBSON, Senior Circuit Judge, and HEANEY, Circuit Judge.

PER CURIAM.

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1

On March 26, 1980, Roberts filed a pro se complaint in the United States District Court for the Western District of Missouri. The defendant was not served with a copy of the complaint. The district court made several attempts to contact Roberts so that service of process could be completed, but Roberts did not respond. On September 2, 1980, the district court dismissed the complaint without prejudice for failure to prosecute, pursuant to Fed.R.Civ.P. 41(b).

2

On September 22, 1980, Roberts filed a notice of appeal and subsequently sought leave to appeal in forma pauperis. The Missouri Division of Employment Security filed a motion for summary disposition under Eighth Circuit Rule 9(b). This court issued a show cause order on December 1, 1980, giving the appellant ten days to respond to the Missouri Division of Employment Security's motion.

3

After reviewing the record, we deny leave to appeal in forma pauperis and order dismissal of the appeal on the grounds the appeal is frivolous and entirely without merit. See 28 U.S.C. § 1915(d). An order for dismissal for failure to prosecute is within the discretion of the trial court, Grunewald v. Missouri Pacific Railroad, 331 F.2d 983, 985 (8th Cir. 1964), and there was clearly no abuse here. Since the dismissal of the complaint was without prejudice, Roberts may file another complaint if he wishes.

4

The appeal is dismissed.