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
FORT SMITH DIVISION
WALTER DARWIN NABORS, JR. PLAINTIFF
v. Civil No. 2:19-CV-02119
SERGEANT MOORE DEFENDANT
OPINION AND 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 obey a Court Order and to prosecute this case.
I. BACKGROUND
Plaintiff filed his Complaint on September 24, 2019. (ECF No. 1). On October 3, 2019,
Plaintiff filed a Motion to Amend his Complaint. (ECF No. 6). Plaintiff then filed a second Motion
to Amend on October 7, 2019, which also asked the Court to Dismiss his First Motion to Amend.
(ECF No. 7). Plaintiff filed a Notice of Address Change on October 15, 2019, indicating he was now
incarcerated in the Arkansas Department of Correction (“ADC”) Ouachita River Unit. (ECF No. 8).
On October 15, 2019, the Court entered an Order granting Plaintiff’s second Motion to Amend
in its entirety. (ECF No. 9). This Order directed Plaintiff to submit his Amended Complaint by
November 1, 2019, and advised him that failure to do so would result in the dismissal of his case. (Id.
at 2). This Order was not returned as undeliverable. To date, Plaintiff has not submitted his Amended
Complaint and has not otherwise communicated with the Court.
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.
IV. CONCLUSION
For these reasons, IT IS ORDERED that Plaintiff’s claims are DISMISSED WITHOUT
PREJUDICE.
IT IS SO ORDERED this 4th day of December 2019.
/s/P. K. Holmes, III
P. K. HOLMES, III
U.S. DISTRICT JUDGE