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
LEWIS ELMER KENDRICK, III PLAINTIFF
v. Civil No.: 6:18-CV-06026
DR. CHARLES L. LIGGETT and
CORRECTIONAL OFFICER FINN DEFENDANTS
ORDER
Currently before the Court is Plaintiff’s failure to obey a Court order and failure to
prosecute this case. Plaintiff Lewis Elmer Kendrick, III proceeds in this matter pro se and in forma
pauperis pursuant to 42 U.S.C. § 1983.
Plaintiff filed his Complaint on March 8, 2018. (ECF No. 1). On that same day, Plaintiff’s
Motion for Leave to Proceed In Forma Pauperis was granted. (ECF No. 3).
On May 18, 2018, Separate Defendant Dr. Charles Liggett filed a Motion for Partial
Summary Judgment. (ECF No. 17). On May 21, 2018, Plaintiff was directed by the Court to
respond to Separate Defendant Liggett’s motion by June 11, 2018. Plaintiff was further advised
that “the failure to timely and properly comply with this Order will result in: (a) all of the facts
set forth by the Defendant in the summary judgment papers being deemed admitted by Plaintiff,
pursuant to Local Rule 56.1(c); and/or (b) shall subject this case to dismissal, without prejudice,
pursuant to Local Rule 5.5(c)(2).” (ECF No. 20).
On May 23, 2018, Separate Defendant Jason D. Finn filed a Motion for Summary Judgment
on Exhaustion. (ECF No. 21). On May 29, 2018, Plaintiff was directed by the Court to respond
to Separate Defendant Finn’s motion by June 19, 2018. Plaintiff was further advised that “the
failure to timely and properly comply with this Order will result in: (a) all of the facts set forth by
the Defendant in the summary judgment papers being deemed admitted by Plaintiff, pursuant to
Local Rule 56.1(c); and/or (b) shall subject this case to dismissal, without prejudice, pursuant to
Local Rule 5.5(c)(2).” (ECF No. 24).
Plaintiff has not responded to the aforementioned motions for summary judgment. Thus,
Plaintiff has failed to comply with the Orders of this Court.
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:
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 respond to Defendants’
motions for summary judgment. In addition, 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
for failure to prosecute this case. Accordingly, Plaintiff’s Complaint (ECF No. 1) is DISMISSED
WITHOUT PREJUDICE.
IT IS SO ORDERED, this 20th day of July 2018.
/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge