stating that district court may dismiss a pro se litigant’s action for failure to comply with a court order on its own initiative
How later courts described this case
- stating that district court may dismiss a pro se litigant’s action for failure to comply with a court order on its own initiative
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KENNETH MOORE, )
)
Plaintiff, )
)
v. ) No. 4:20-cv-01638-HEA
)
ACCESS SECURE PAK, )
)
Defendant. )
OPINION, MEMORANDUM AND ORDER
This matter comes before the Court on its own motion. On November 23, 2020, the Court
directed plaintiff to file an amended complaint. (Docket No. 2). The Court also ordered plaintiff
to either file a motion for leave to proceed in forma pauperis, or pay the required filing fee. Plaintiff
was given thirty days in which to respond, but has failed to comply with either directive. Therefore,
for the reasons discussed below, this action will be dismissed without prejudice. See Fed. R. Civ.
P. 41(b).
Background
Plaintiff is a self-represented litigant who is currently incarcerated at the California Men’s
Colony State Prison in San Luis Obispo, California. On November 19, 2020, he filed a document
with the Court that was construed as a prisoner civil rights complaint under 42 U.S.C. § 1983.
(Docket No. 1). The complaint was not on a Court form, as required. Plaintiff also did not pay the
required filing fee or file a motion for leave to proceed in forma pauperis.
On November 23, 2020, the Court directed plaintiff to file an amended complaint on a
Court form, which was provided to him. (Docket No. 2). Plaintiff was further directed to either file
a motion for leave to proceed in forma pauperis, or pay the $400 filing fee. He was given thirty
days in which to comply. The Court advised plaintiff that failure to comply would result in the
dismissal of this action without prejudice and without further notice.
Discussion
As noted above, on November 23, 2020, the Court ordered plaintiff to file an amended
complaint on a Court form. He was also directed to either submit a motion for leave to proceed in
forma pauperis, or pay the $400 filing fee. He was given thirty days in which to comply. Plaintiff’s
responses were due on or before December 23, 2020. In the order, the Court advised plaintiff that
failure to comply would result in the dismissal of this action without prejudice and without further
notice.
The deadline for plaintiff to file his amended complaint, and to either file a motion for
leave to proceed in forma pauperis or pay the filing fee, has expired. In fact, the Court has given
plaintiff substantially more than thirty days in which to respond. Nonetheless, plaintiff has failed
to submit an amended complaint, and he has failed to either submit a motion for leave to proceed
in forma pauperis or pay the filing fee, as directed. He has also failed to file a motion with the
Court seeking an extension of time in which to comply. Indeed, since the filing of the complaint,
the Court has had no further communication with plaintiff whatsoever.
Under Rule 41(b), an action may be dismissed for failure to comply with a court order. See
Fed. R. Civ. P. 41(b); and Brown v. Frey, 806 F.2d 801, 803 (8th Cir. 1986) (stating that district
court may dismiss a pro se litigant’s action for failure to comply with a court order on its own
initiative). Because plaintiff has not complied with the Court’s order of November 23, 2020, or
filed any type of motion seeking an extension of time in which to comply, the Court will dismiss
this action without prejudice.
Accordingly,
IT IS HEREBY ORDERED that this action is DISMISSED without prejudice for failure
to comply with the Court’s order of November 23, 2020. See Fed. R. Civ. P. 41(b). A separate
order of dismissal will be entered herewith.
IT IS FURTHER ORDERED that an appeal from this dismissal would not be taken in
good faith.
Dated this 1“ day of February, 2021.
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE