Opinion

Burdette v. Brown

Court
District Court, E.D. Missouri
Filed
May 30, 2023
Cited by
0 cases
Authority
More cited than 24.2%

“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”

How later courts described this case

  • “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”
  • affirming district court’s Fed. R. Civ. P. 41(b) dismissal for failure to comply with a court order, where plaintiff failed to follow an order to file an amended complaint, “[d]espite warnings that dismissal could result from his failure to do so”
  • “A district court may, on its own motion, dismiss an action for failure of the plaintiff to comply with any order of the court”
  • stating that the “district court has the power under Fed. R. Civ. P. 41(b) to dismiss an action for the plaintiff’s failure to comply with any court order,” and that “[a] court may so dismiss on its own initiative”

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

PAUL D. BURDETTE, )

)

Plaintiff, )

)

v. ) No. 4:23-cv-00426-MTS

)

RANDI BROWN, )

)

Defendant. )

MEMORANDUM AND ORDER

This matter comes before the Court on its own motion. On April 13, 2023, the Court

ordered plaintiff Paul D. Burdette to either file a motion for leave to proceed in forma pauperis or

pay the full filing fee within thirty days. Doc. [2]. More than thirty days have elapsed, and plaintiff

has not complied. Therefore, for the reasons discussed below, the Court will dismiss this action

without prejudice. See Fed. R. Civ. P. 41(b).

Background

Plaintiff is a self-represented litigant who is currently incarcerated at the Federal

Correctional Institution in Marianna, Florida. On April 4, 2023, he filed a civil action pursuant to

42 U.S.C. § 1983, alleging that defendant had deliberately misled a civil court, resulting in an order

for him to pay child support. Doc. [1]. The complaint was not accompanied by a motion for leave

to proceed in forma pauperis, and plaintiff did not pay the required filing fee. See E.D. Mo. L.R.

2.01(B)(1) (“The Clerk may refuse to receive and file any pleading or document in any case until

the applicable statutory fee is paid, except in cases accompanied by a completed application to

proceed in forma pauperis”).

On April 13, 2023, the Court ordered plaintiff to either file a motion for leave to proceed

in forma pauperis or pay the filing fee. Doc. [2]. The Court also directed the Clerk of Court to send

to plaintiff a copy of its application for leave to proceed in forma pauperis form, to aid his

compliance. Plaintiff was given thirty days in which to respond. The Court advised him that his

failure to either pay the fee or file a motion for leave to proceed in forma pauperis would result in

the dismissal of this action without prejudice and without further notice.

Discussion

Even though he is a self-represented litigant, plaintiff must still comply with the Court’s

orders and with the Federal Rules of Civil Procedure. See Ackra Direct Marketing Corp. v.

Fingerhut Corp., 86 F.3d 852, 856 (8th Cir. 1996) (“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”). 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 rule applies to self-

represented litigants. See Brown v. Frey, 806 F.2d 801, 803 (8th Cir. 1986) (noting that self-

represented “litigants are not excused from compliance with substantive and procedural law”).

Pursuant to Rule 41(b), if a “plaintiff fails to prosecute or to comply with these rules or a

court order, a defendant may move to dismiss the action or any claim against it.” Fed. R. Civ. P.

41(b). The Court may also dismiss an action under Rule 41(b) on its own motion. See Brown, 806

F.2d at 803 (stating that the “district court has the power under Fed. R. Civ. P. 41(b) to dismiss an

action for the plaintiff’s failure to comply with any court order,” and that “[a] court may so dismiss

on its own initiative”). See also Haley v. Kansas City Star, 761 F.2d 489, 490 (8th Cir. 1985) (“A

district court may, on its own motion, dismiss an action for failure of the plaintiff to comply with

any order of the court”).

As noted above, on April 13, 2023, the Court ordered plaintiff to either file a motion for

leave to proceed in forma pauperis or pay the full filing fee. Plaintiff was given thirty days in which

to comply, and warned that his failure to comply would result in the dismissal of this action without

prejudice and without further notice. His response was due on or before May 15, 2023. The

deadline for plaintiff to either file for leave to proceed in forma pauperis or pay the fee has expired.

Indeed, the Court has given plaintiff more than thirty days to fulfill the order’s requirements.

Despite being given additional time, plaintiff has not filed a motion for leave to proceed in forma

pauperis, he has not paid the filing fee, and he has not sought an extension of time in which to do

either.

Because plaintiff has not complied with the Court’s order of April 13, 2023, and because

he has not sought an extension of time in which to comply, the Court will dismiss this action

without prejudice. See Dudley v. Miles, 597 Fed. Appx. 392 (8 Cir. 2015) (affirming district

court’s Fed. R. Civ. P. 41(b) dismissal for failure to comply with a court order, where plaintiff

failed to follow an order to file an amended complaint, “[d]espite warnings that dismissal could

result from his failure to do so”).

Accordingly,

IT IS HEREBY ORDERED that this action is DISMISSED without prejudice for failure

to comply with the Court’s order of April 13, 2023. See Fed. R. Civ. P. 41(b). A separate order of

dismissal will be entered herewith.

Dated this 30th day of May, 2023. | | “| /

MATTHEW T. SCHELP

UNITED STATES DISTRICT JUDGE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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