# King v. Winegardner

> District Court, E.D. Missouri · April 12, 2021

URL: https://www.frixlaw.com/law-library/cases/10234871

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** April 12, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10234871

## How later opinions describe it (automated extraction)

- stating that district court may dismiss a pro se litigant’s action for failure to comply with a court order on its own initiative

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

JAMES E. KING, JR., )
)
Plaintiff, )
)
v. ) No. 4:20-cv-01501-AGF
)
KURTIS R. WINEGARDNER, et al., )
)
)
Defendants. )

MEMORANDUM AND ORDER
This matter comes before the Court on its own motion. On February 12, 2021, plaintiff was
ordered to file an amended complaint within thirty days. (Docket No. 6). Plaintiff has failed to
comply. 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 Missouri Eastern
Correctional Center in Pacific, Missouri. On October 16, 2020, he filed a civil action pursuant to
42 U.S.C. § 1983, naming Correctional Officers Kurtis R. Winegardner, Timothy M. Brady,
Unknown Clark, and S. Jones as defendants. (Docket No. 1 at 2-4). They were sued in both their
official and individual capacities. In the complaint, plaintiff alleged that he was injured during a
“forceful escort,” which he believed amounted to an assault. (Docket No. 1 at 4-5). Along with the
complaint, plaintiff filed a motion for leave to proceed in forma pauperis. (Docket No. 3).
On February 12, 2021, the Court granted plaintiff’s motion to proceed in forma pauperis.
(Docket No. 6). Because plaintiff was proceeding in forma pauperis, the Court reviewed his
complaint pursuant to 28 U.S.C. § 1915. Based on that review, the Court determined that his
complaint was subject to dismissal. In particular, with regard to his official capacity claims,
plaintiff had not made any allegations against the State of Missouri. As to the individual capacity
claims, he had not presented sufficient facts to show that each of the four defendants was
personally responsible for violating his constitutional rights.

Rather than dismissing outright, the Court directed plaintiff to file an amended complaint,
and was provided instructions on how to do so. The Court also directed the Clerk of Court to send
plaintiff a copy of the Court’s prisoner civil rights complaint form. Plaintiff was given thirty days
in which to comply. He was advised that failure to comply within thirty days would result in the
dismissal of this action without prejudice and without further notice.
Discussion
As noted above, on February 12, 2021, the Court ordered plaintiff to file an amended
complaint within thirty days. Plaintiff was advised that failure to comply with the Court’s order
would result in the dismissal of this action without prejudice and without further notice. The
amended complaint was due on or before March 15, 2021.

The deadline for plaintiff to file his amended complaint has expired. In fact, the Court has
given plaintiff more than thirty days in which to respond. Nonetheless, plaintiff has failed to file
an amended complaint as directed. He has also failed to file a motion with the Court seeking an
extension of time in which to comply.
Under Rule 41(b), an action may be dismissed for failure to comply with a court order. See
Fed. R. Civ. P. 41(b). See also 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 February 12, 2021, 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 February 12, 2021. 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 12th of April, 2021.

UNITED STATES DISTRICT JUD

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10234871. Public record. Not legal advice.