The opinion
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
FLANDERS DEWAYNE LOWE PLAINTIFF
v. Civil No. 1:23-CV-01013-BAB
SHERIFF TOMMY STURGEON, Ashley County, Arkansas;
JOHNNY GUY, Jail Administrator; TIFFANY STANLEY,
Asst. Jail Administrator; and GIA MONDRAGON, Former
Asst. Jail Administrator, DEFENDANTS.
ORDER
On February 9, 2023, Plaintiff Flanders DeWayne Lowe, a prisoner, filed this pro se civil
rights matter pursuant to 42 U.S.C. § 1983. (ECF No. 1). In this case, the parties have consented
to the jurisdiction of the magistrate judge. (ECF No. 18). This matter is currently before the Court
on Plaintiff’s failure to comply with the orders of the Court.
BACKGROUND
This Court previously granted Plaintiff’s application to proceed in forma pauperis (IFP).
(ECF No. 3). In that Order, the Court also ordered Plaintiff to update the Court with his contact
information within 30 days of any such change, failing which this case would be subject to
dismissal. Id. This Order was not returned as undeliverable. The Court entered an initial
scheduling order on April 17, 2023, requiring any motions for summary judgment on the merits to
be filed by September 14, 2023. (ECF No. 17). On April 26, 2023, Plaintiff filed a motion asking
to withdraw his earlier motion requesting leave to amend the complaint. (ECF No. 20). The Court
granted that motion and vacated its previous order granting Plaintiff leave to amend the complaint.
(ECF No. 21). After this Order was returned as undeliverable, Plaintiff filed a notice of change of
address with the Court. (ECF Nos. 24-25). The Order was then re-sent to Plaintiff’s updated
address. (ECF No. 25). It was not returned as undeliverable from this address.
On September 8, 2023, Defendants filed a Motion for Summary Judgment, along with a
Memorandum and Statement of Facts in Support. (ECF Nos. 27-29). That same day, this Court
ordered Plaintiff to file a response to Defendants’ Motion for Summary Judgment by no later than
September 29, 2023, failing which this matter would be subject to dismissal. (ECF No. 30). That
order was not returned as undeliverable. When the deadline for filing a response elapsed with no
communication from Plaintiff, this Court ordered Plaintiff to show cause why this matter should
not be dismissed for failure to comply with the Court’s orders. (ECF No. 31). The show cause
response was due by October 27, 2023. Id. This Order was also not returned as undeliverable.
The show cause order deadline has now also passed, and Plaintiff has not responded. In fact,
Plaintiff has not communicated with this Court in any way since he filed his notice of change of
address on May 31, 2023.
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 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).
To order dismissal with prejudice under Rule 41(b), however, “is a drastic sanction which
should be exercised sparingly.” Brown, 806 F.2d at 803 (quoting Pardee v. Stock, 712 F.2d 1290,
1292 (8th Cir. 1983)). That said, “the district court’s exercise of this power is within the
permissible range of its discretion if there has been a clear record of delay or contumacious conduct
by the plaintiff.” Id. (quoting Haley v. Kansas City Star, 761 F.2d 489, 491 (8th Cir. 1985)
(internal quotations omitted)).
In considering a Rule 41(b) dismissal with prejudice, the Court must balance: (1) “the
degree of [Plaintiff’s] egregious conduct”; and, to a lesser extent, (2) the adverse impact of the
conduct on the Defendants; and (3), the Court’s ability to administer justice. Rodgers v. Curators
of University of Missouri, 135 F.3d 1216, 1219 (8th Cir. 1998) (internal quotations omitted). Upon
review of a dismissal with prejudice, the Eighth Circuit considers: “whether in the particular
circumstances of the case the needs of the court in advancing a crowded docket and preserving
respect for the integrity of its internal procedures are sufficient to justify the harsh consequences
of forever denying a litigant his day in court.” Id. (internal quotation omitted). However, “the
district court need not have found that [plaintiff] acted in bad faith, only that he acted intentionally
as opposed to accidentally or involuntarily.” Id.
ANALYSIS
This matter has been pending for approximately nine months. Although Plaintiff initially
prosecuted his case and engaged in motion practice at the outset, he has since failed to respond to
two court orders. See (ECF Nos. 30-31). These orders, moreover, were not returned as
undeliverable. Furthermore, the record reflects that Plaintiff is well aware of the Court’s order
requiring him to update the Court with any change of address within 30 days of such a change
because the Plaintiff previously complied with this Order by filing a notice of his change of
address. (ECF No. 25). On this record, therefore, the Court finds that Plaintiff’s failure to respond
has been intentional.
The Defendants, for their part, have expended considerable resources and energy in
preparing and submitting a Motion for Summary Judgment, along with a Memorandum and
Statement of Indisputable Material Facts in support. (ECF No. 27-29). On balance, therefore, this
Court finds that circumstances warrant a dismissal with prejudice. Thus, pursuant to Federal Rule
of Civil Procedure 41(b) and Local Rule 5.5(c)(2), this matter is DISMISSED WITH PREJUDICE.
IT IS SO ORDERED, this 1st day of November 2023.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE