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
HOT SPRINGS DIVISION
PHILLIP BATES PLAINTIFF
v. Civil No. 6:16-CV-06104
SERGEANT JAMERSON DEFENDANT
ORDER
Plaintiff proceeds in this matter pro se and in forma pauperis pursuant to 42 U.S.C. § 1983.
Currently before the Court is Plaintiff’s failure to comply with a Court Order and to prosecute this
case.
I. BACKGROUND
Defendant Jamerson filed his Motion for Summary Judgment on November 16, 2017.
(ECF No. 22). On November 17, 2017, the Court entered an Order directing Plaintiff to file a
Response to the Motion by December 18, 2017. (ECF No. 25). In this Order, Plaintiff was advised
that failure to timely and properly file his Response would result in either Defendant’s facts being
deemed admitted or in the dismissal of his case. (Id.).
On November 27, 2017, Plaintiff filed a Response. (ECF No. 26). The Response was a
two-page letter describing an incident which Plaintiff alleged occurred on the twenty-first of
March. (Id. at 1). Plaintiff did not specify the year of the incident. Plaintiff did not indicate how
this incident was related to the April 18, 2016, incident detailed in his Amended Complaint. (ECF
No. 6 at 4).
On April 16, 2018, the Court entered a Show Cause Order. (ECF No. 27). The Order noted
that the Response did not comply with the directives of Court’s prior Order to Respond, and
directed Plaintiff to show cause for his failure to comply by May 7, 2018. Plaintiff was advised
that his failure to respond to the Order would result in the dismissal of his case. (Id.). To date,
Plaintiff has not filed any Response to the Order. Plaintiff’s last communication with the Court
was on November 27, 2017. On May 8, 2018, Defendant filed a Motion to Dismiss, noting that
Plaintiff had not complied with the Court’s Order. (ECF No. 28).
II. LEGAL STANDARD
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).
III. ANALYSIS
Plaintiff has failed to comply with a Court order. Plaintiff has failed to prosecute this
matter. Accordingly, 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.
For these reasons, IT IS ORDERED that Plaintiff’s claims are DISMISSED WITHOUT
PREJUDICE.
IT IS SO ORDERED this 8th day of June 2018.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE