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
CARLOS ALBERTO GARAY, JR. PLAINTIFF
v. Civil No. 4:18-cv-4148
CAPTAIN ADAMS, Miller County Detention
Center (MCDC); LIEUTENANT MILLER, MCDC;
SERGEANT GRIFFIE, MCDC; and SERGEANT
SANDERS, MCDC DEFENDANTS
ORDER
Plaintiff Carlos A. Garay, Jr., filed this civil rights case pro se, pursuant to 42 U.S.C. §
1983 while he was an inmate of the Miller County Detention Center. With his complaint, Plaintiff
submitted an in forma pauperis (“IFP”) application. However, he failed to have the certification
regarding inmate funds held in his name completed by an appropriate detention center official.
The Court entered an Order (ECF No. 3) giving Plaintiff until November 16, 2018, to either pay
the $400 filing fee or submit an IFP application with the certificate portion of the application
completed by the appropriate detention center. Plaintiff was advised that if he failed to comply
with the Order by the provided deadline, this case would become subject to summary dismissal for
failure to obey an order of the Court.
The Court’s order also advised Plaintiff that he was required to “immediately inform the
Court of any change of address.” He was advised that he would have thirty days from the date of
transfer or release from a facility to notify the Court of his new address. Finally, he was told that
“[f]ailure to inform the Court of an address change shall result in the dismissal of this case.” (ECF
No. 3). Additionally, Rule 5.5(c)(2) of the Local Rules for the Eastern and Western Districts of
Arkansas requires pro se parties to “promptly notify the Clerk and 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.”
On November 6, 2018, mail sent by the Court to Plaintiff was returned as undeliverable
from the Miller County Detention Center marked: “Return to sender. Not here.” To date,
Plaintiff has not complied with the Court’s order and his time to do so has passed. Plaintiff has
not provided the Court with a new address. Plaintiff has not contacted the Court in any way after
initiating this action on October 26, 2018.
The Federal Rules of Civil Procedure specifically contemplate dismissal of a case on the
ground that the plaintiff failed to prosecute or failed to comply with order of the court. Fed. R.
Civ. P. 41(b); Line 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 the Court’s order requiring that he either pay the full
filing fee or submit a completed IFP application by November 16, 2018. Plaintiff has also failed
to keep the Court informed of his current address. Accordingly, the Court finds that Plaintiff’s
complaint should be and hereby is DISMISSED WITHOUT PREJUDICE based on Plaintiff’s
failure to obey an order of the Court and his failure to comply with Local Rule 5.5(c)(2).
IT IS SO ORDERED, this 11th day of December, 2018.
/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge