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
SOUTHEASTERN DIVISION
PENNY COLEMAN, )
Petitioner,
V. No. 1:21-cv-00077-SNLJ
UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM AND ORDER
This matter comes before the Court on its own motion. On August 12, 2021, the Court
directed petitioner Penny Coleman to file an amended 28 U.S.C. § 2241 petition on a Court form.
She was also ordered to file a motion for leave to proceed in forma pauperis or pay the filing fee.
Petitioner was given thirty days in which to respond. She has failed to comply. Therefore, for the
reasons discussed below, this action will be dismissed. See Fed. R. Civ. P. 41(b).
Background
Petitioner is a self-represented litigant who is currently incarcerated at the Federal
Correctional Institution in Aliceville, Alabama. On May 7, 2010, she filed a pro se “Motion for
Hardship Credit for Hard Time Served” in her criminal cases.' Because the motion appeared to
relate to the execution of petitioner’s sentence, the Court construed it as a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2241. The Court administratively terminated the motion in
both her criminal cases, and directed the Clerk of Court to open it as a new § 2241 action.
On August 12, 2021, the Court ordered petitioner to file an amended 28 U.S.C. § 2241
petition on a Court provided form, as required. See E.D. Mo. L.R. 2.06(A) (“All actions brought
' See woes v. Coleman, No. 1:14-cr-29-SNLJ (E.D. Mo.); and United States v. Coleman, No. 1:14-cr-80-SNLJ
(E.D. Mo.).
by self-represented plaintiffs or petitioners should be filed on Court-provided forms”). Petitioner
was also directed to either file a motion for leave to proceed in forma pauperis or pay the filing
fee. Both a § 2241 form and an application to proceed in forma pauperis were sent to petitioner.
She was given thirty days to comply, and advised that a failure to comply would result in the
dismissal of this action without prejudice and without further notice. Petitioner’s response was due
by September 13, 2021.
Discussion
On August 12, 2021, the Court ordered petitioner to file an amended 28 U.S.C. § 2241
petition on a Court form, and to either file a motion for leave to proceed in forma pauperis or pay
the filing fee. She was given thirty days in which to comply. Petitioner’s responses were due on or
before September 13, 2021. In the order, the Court advised petitioner that failure to comply would
result in the dismissal of this action without prejudice and without further notice.
The deadline for petitioner to file her amended petition, 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
petitioner more than thirty days in which to respond. Nonetheless, petitioner has failed to submit
an amended petition, and has failed to either submit a motion for leave to proceed in forma pauperis
or pay the filing fee, as directed. She has also failed to file a motion with the Court seeking an
extension of time in which to comply. Indeed, since the initial filing, the Court has had no further
communication with petitioner whatsoever.
“In general, pro se representation does not excuse a party from complying with a court’s
orders and with the Federal Rules of Civil Procedure.” Ackra Direct Marketing Corp. v. Fingerhut
Corp., 86 F.3d 852, 856 (8" Cir. 1996). Under Rule 41(b) of the Federal Rules of Civil Procedure,
an action may be dismissed for failure to comply with a court order. See Fed. R. Civ. P. 41(b). This
tule applies to self-represented litigants. See Brown v. Frey, 806 F.2d 801, 803 (8 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 petitioner has not complied with the Court’s order of August
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 August 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 AU, day of S eppfea fre 2 , 2021.
SENIOR UNITED STATES DISTRICT JUDGE