# Owens v. Messer

> District Court, W.D. Arkansas · July 6, 2022

URL: https://www.frixlaw.com/law-library/cases/10011779

## Case

- **Court:** District Court, W.D. Arkansas
- **Decided:** July 6, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION

ANDREW BRYCE OWENS PLAINTIFF

v. Civil No. 1:21-cv-1054

JONATHAN MESSER, 13th Judicial DTF;
ANTHONY ROSS, 13th Judicial DTF; and
RICKY ROBERTS, Sheriff Union County DEFENDANTS

ORDER

On January 18, 2022, the parties consented to have the undersigned conduct all proceedings
in this case including a jury or nonjury trial and to order the entry of a final judgment in accordance
with 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73. (ECF No. 12). Before the Court is Plaintiff’s failure
to comply with orders of the Court.
Plaintiff Andrew Bryce Owens filed this 42 U.S.C. § 1983 action pro se on November 5,
2021. (ECF No. 1). His application to proceed in forma pauperis (“IFP”) was granted that same
day. (ECF No. 3). On April 26, 2022, Defendant Ross filed a Motion to Dismiss. (ECF No. 16).
The following day, the Court ordered Plaintiff to file a response to the motion by May 18, 2022.
In the order Plaintiff was advised that failure to timely comply would result in dismissal of this
case. (ECF No. 18). Plaintiff did not respond, and the order was not returned as undeliverable.
On May 24, 2022, the Court entered an order directing Plaintiff to show cause by June 14,
2022, as to why he failed to comply with the Court’s order to respond to Defendant Ross’s motion
to dismiss. (ECF No. 19). This order again informed Plaintiff that failure to timely comply would
result in dismissal of this case. Plaintiff did not respond, and the show cause order was not returned
as undeliverable.
On June 13, 2022, the Court received a notice from Plaintiff that his address of record had
changed. (ECF No. 22). In an abundance of caution the Court issued a second show cause order
giving Plaintiff until July 5, 2022, to inform the Court as to why he failed to file a response to the
motion to dismiss. (ECF No. 23). Plaintiff was again informed that failure to respond to the show

cause order would result in dismissal of this case. To date, Plaintiff has not responded, and the
second show cause order has not been returned to the Court 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). Local Rule 5.5(c)(2) states 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 comply with orders of the Court and failed to prosecute this case.
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 Complaint (ECF No. 1) is
DISMISSED WITHOUT PREJUDICE.
IT IS SO ORDERED this 6th day of July 2022.
/s/ Barry A. Bryant

HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10011779. Public record. Not legal advice.