noting that pro se filings must always be construed liberally
How later courts described this case
- noting that pro se filings must always be construed liberally
- timely objections shift a court’s review from one which scrutinizes for plain error to one in which the issues are reviewed de novo
- holding that a court’s inherent power to dismiss a case for lack of prosecution allows for a court to dismiss under Rule 41(b) without a defendant first moving for dismissal
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
ROBERT E. L. BROWN PLAINTIFF
v. Case No. 6:21-cv-6084
MICHAEL SHANE HARRIS, et al. DEFENDANTS
ORDER
Before the Court is a Report and Recommendation filed by the Honorable Barry A. Bryant,
United States Magistrate Judge for the Western District of Arkansas. ECF No. 14. Plaintiff has
filed an objection. ECF No. 15. The Court finds the matter ripe for consideration.
On April 20, 2021, Plaintiff filed his Complaint (ECF No. 2) and his Motion for Leave to
Proceed in forma pauperis (“IFP”) (ECF No. 1). Plaintiff’s Complaint (ECF No. 2) and Motion
to Proceed IFP (ECF No. 1) were initially filed in the Eastern District of Arkansas. This matter
was later transferred to the Western District of Arkansas. ECF No. 3; ECF No. 4. Plaintiff’s
Complaint made general accusations against Defendants for unlawful eviction, assault, and seizure
of property and asserted jurisdiction under 28 U.S.C. §§ 1334 and 1347. ECF No. 2, p. 2-3.
On June 3, 2021, Plaintiff filed an Updated Motion for Leave to Proceed IFP (ECF No. 7),
which was referred to Judge Bryant for consideration. Plaintiff also filed other motions: Motion
for Order of Protection (ECF No. 8); Amended Motion for Order of Protection (ECF No. 9);
Motion and Affidavit to Appoint Counsel (ECF No. 11), and; Motion for Emergency Action (ECF
No. 12). On June 9, 2021, Judge Bryant granted Plaintiff’s motions to proceed IFP, with the
condition that Plaintiff provide service addresses for each Defendant within twenty (20) days of
the order. On July 8, 2021, Judge Bryant filed the instant Report and Recommendation, which
recommends that Plaintiff’s claims be dismissed without prejudice. ECF No. 14, p. 1-2. On July
21, 2021, Plaintiff filed his objection to Judge Bryant’s recommendation. ECF No. 15.
Judge Bryant’s Report and Recommendation determined that Plaintiff did not comply with
the previous order (ECF No. 10) to provide service addresses for all Defendants by June 29, 2021.
ECF No. 14. Judge Bryant states that this failure to comply with an order of the Court is sufficient
grounds to dismiss this action pursuant to Federal Rule of Civil Procedure 41(b). Id. at p. 1-2.
Judge Bryant also recommends that all other pending motions filed by Plaintiff be denied along
with dismissal of this matter. Id. at p. 2. Plaintiff’s objection does not address Judge Bryant’s
reasoning or explain why he did not provide the Court with service addresses for Defendants.
Instead, Plaintiff uses the majority of his filed objection to make new factual allegations related to
his claims, make new demands for criminal charges against Defendants, and request monetary
awards. ECF No. 15, p. 1-3. The closest Plaintiff gets to acknowledging the basis of Judge
Bryant’s recommendation for dismissal is attaching a list of service addresses to his objection for
four of the named Defendants. Id. at Exhibit 2.
Pursuant to 28 U.S.C. § 636(b)(1), the Court will conduct a de novo review of the issues
related to any specific and timely objection made by Plaintiff to Judge Bryant’s recommendation.
See also Griffini v. Mitchell, 31 F.3d 690, 692 (8th Cir. 1994) (timely objections shift a court’s
review from one which scrutinizes for plain error to one in which the issues are reviewed de novo).
Federal Rule of Civil Procedure 41(b) allows a defendant to move to dismiss an action when a
plaintiff has failed to prosecute his claims or comply with an order of the Court. Plaintiff’s filed
objection, while timely, does not contain any specific objection to Judge Bryant’s
recommendation. Even applying the required liberal construction to Plaintiff’s pro se objection,
the Court cannot view his attachment of service addresses for some Defendants as a specific
objection to Judge Bryant’s reasoning that Plaintiff failed to adhere to the prior order to provide
service addresses by a certain date. See Devine v. Walker, 984 F.3d 605, 607 (8th Cir. 2020)
(noting that pro se filings must always be construed liberally) (citations omitted). Therefore, the
standard for reviewing Judge Bryant’s recommendation is one of plain error. See Griffini, 31 F.3d
at 692. Applying that standard, the Court finds that Judge Bryant’s recommendation is sound.
Plaintiff failed to adhere to Judge Bryant’s order (ECF No. 10) that Plaintiff provide service
addresses for all Defendants within twenty (20) days. Accordingly, Judge Bryant’s
recommendation that this matter be dismissed pursuant to Rule 41(b) for failure to adhere to an
order of the Court is not in error. See Link v. Wabash R. Co., 370 U.S. 626, 630-32 (1962) (holding
that a court’s inherent power to dismiss a case for lack of prosecution allows for a court to dismiss
under Rule 41(b) without a defendant first moving for dismissal). As to Judge Bryant’s
recommendation that all other pending motions (ECF No. 8; ECF No. 9; ECF No. 11; ECF No.
12) by Plaintiff be denied, the Court finds that would be a natural consequence of its decision to
adopt the recommendation to dismiss Plaintiff’s claims.
For the reasons stated above, the Court adopts Judge Bryant’s Report and Recommendation
(ECF No. 14) in toto. Plaintiff’s objection is overruled. Plaintiff’s claims are hereby DISMISSED
WITHOUT PREJUDICE.
IT IS SO ORDERED, this 4th day of October, 2021.
/s/ Susan O. Hickey
Susan O. Hickey
Chief United States District Judge