stating that the district court possesses the power to dismiss sua sponte under Rule 41(b)
How later courts described this case
- stating that the district court possesses the power to dismiss sua sponte under Rule 41(b)
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
JAMES COY COLE PLAINTIFF
v. Civil No. 4:18-cv-4041
RYAN RUSSELL, Chief of Police,
Prescott Police Department; and,
JOEY BEVIS, Detective, Prescott
Police Department DEFENDANTS
ORDER
Currently before the Court is Plaintiff’s failure to obey a Court order and failure to
prosecute this case. Plaintiff James Coy Cole proceeds in this matter pro se pursuant to 42 U.S.C.
§ 1983.
Plaintiff filed his Complaint in the Eastern District of Arkansas on November 20, 2017.
(ECF No. 1). On March 28, 2018, an Order was entered directing that the case be transferred to
the Western District of Arkansas. (ECF No. 2).
Also on March 28, 2018, the Court issued an order finding that Plaintiff failed to submit
an application to proceed in forma pauperis (“IFP”). The Court directed Plaintiff to complete and
return an application for IFP or pay the filing fee by April 20, 2018. (ECF No. 5). The Court
advised Plaintiff that if he failed to do so, “the complaint will become subject to summary dismissal
for failure to obey an order of the Court.” (ECF No. 5).
In the same Order, the Court directed the Plaintiff to submit an amended Complaint by
April 20, 2018. (ECF No. 5). The Order states “Plaintiff’s case shall be subject to dismissal if he
fails to return the Amended Complaint to the Court by April 20, 2018.” (ECF No. 5).
Finally, the Order advised the Plaintiff “that he is required to immediately inform the Court
of any change of address.” (ECF No. 5). And that “[f]ailure to inform the Court of an address
change may result in the dismissal of this case.” (ECF No. 5).
On April 10, 2018, the Order directing that an Amended Complaint and IFP application be
filed was returned as undeliverable and marked “Return to Sender -- Not in jail.” (ECF No. 6).
The Plaintiff did not file an Amended Complaint or an IFP application within the time required by
the March 28, 2018 Order.
Plaintiff has not communicated with the Court since filing his original Complaint in the
Eastern District of Arkansas on November 20, 2017. Plaintiff has not provided the Court with a
current and correct address.
Although pro se pleadings are to be construed liberally, a pro se litigant is not excused
from complying with substantive and procedural law. Burgs v. Sissel, 745 F.2d 526, 528 (8th Cir.
1984). The Local Rules state in pertinent part:
It is the duty of any party not represented by counsel to promptly notify the Clerk
and the other parties to the proceedings of any change in his or her address, to
monitor the progress of the case, and to prosecute or defend the action diligently
. . . If any communication from the Court to a pro se plaintiff is not responded to
within thirty (30) days, the case may be dismissed without prejudice. Any party
proceeding pro se shall be expected to be familiar with and follow the Federal
Rules of Civil Procedure.
Local Rule 5.5(c)(2).
Additionally, the Federal Rules of Civil Procedure specifically contemplate dismissal of a
case on the grounds that the plaintiff failed to prosecute or failed to comply with orders of the
court. Fed. R. Civ. P. 41(b); Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962) (stating that
the district court possesses the power to dismiss sua sponte under Rule 41(b)). Pursuant to Rule
41(b), a district court has the power to dismiss an action based on “the plaintiff’s failure to comply
with any court order.” Brown v. Frey, 806 F.2d 801, 803-04 (8th Cir. 1986) (emphasis added).
Plaintiff has failed to comply with a Court Order directing him to complete an application
for IFP or pay the required filing fee. Plaintiff has failed to comply with a Court Order directing
him to file an Amended Complaint. Plaintiff has failed to prosecute this matter. Pursuant to
Federal Rule of Civil Procedure 41(b) and Local Rule 5.5(c)(2), Plaintiff’s Complaint should be
dismissed without prejudice for failure to comply with the Court’s Local Rules and Orders and
failure to prosecute this case. Accordingly, Plaintiff’s Complaint (ECF No. 1) is DISMISSED
WITHOUT PREJUDICE.
IT IS SO ORDERED, this 21st day of May, 2018.
/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge