Opinion

Gardner v. Smith

Court
District Court, W.D. Arkansas
Filed
Mar 12, 2020
Cited by
0 cases
Authority
More cited than 17.2%

The opinion

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

TEXARKANA DIVISION

MICHAEL V. GARDNER PLAINTIFF

v. Civil No. 4:19-cv-4068

CORPORAL SMITH, Miller County

Detention Center (“MCDC”); CAPTAIN GOLDEN

ADAMS, MCDC; and WARDEN WALKER, MCDC DEFENDANTS

ORDER

Currently before the Court is Plaintiff Michael V. Gardner’s failure to obey two Court

orders. Plaintiff filed this 42 U.S.C. § 1983 action pro se on June 13, 2019. (ECF No. 1). His

application to proceed in forma pauperis (“IFP”) was granted the same day. (ECF No. 3). On

June 25, 2019, Plaintiff filed an Amended Complaint. (ECF No. 6).

On December 23, 2019, Plaintiff notified the Court of a change of address, indicating that

he was no longer incarcerated. (ECF No. 35). When a plaintiff is released from confinement, the

Court’s policy is to require resubmission of affidavits to determine whether he should be required

to pay all, or a portion of, the fees and costs of the lawsuit. Accordingly, on February 6, 2020, this

Court entered an order directing Plaintiff to submit a completed IFP application to the Court for

filing or pay the filing fee by February 21, 2020. (ECF No. 37). The order informed Plaintiff that

failure to timely and properly comply with the order would subject this case to dismissal. To date,

Plaintiff has not complied with the Court’s order, which was not returned as undeliverable.

On February 26, 2020, the Court entered an order directing Plaintiff to show cause by

March 6, 2020, as to why he failed to comply with the Court’s order directing him to either submit

another IFP application or pay the filing fee. (ECF No. 38). Plaintiff was advised that failure to

show cause by the Court’s imposed deadline would result in this case being dismissed without

prejudice. To date, Plaintiff has not responded, and the show-cause order has not been returned as

undeliverable.

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 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 obey two orders of the Court. Therefore, pursuant to Federal Rule

of Civil Procedure 41(b) and Local Rule 5.5(c)(2), the Court finds that this case should be

dismissed. Accordingly, Plaintiff’s Amended Complaint (ECF No. 6) is DISMISSED

WITHOUT PREJUDICE.

IT IS SO ORDERED, this 12th day of March, 2020.

/s/ Susan O. Hickey

Susan O. Hickey

Chief United States District Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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