a district court has the power to dismiss an action for the plaintiff's failure to comply with any court order
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- a district court has the power to dismiss an action for the plaintiff's failure to comply with any court order
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The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
DESMOND HARDY, )
Plaintiff,
VS. Case No. 2:23-CV-12 RHH
PIKE COUNTY SHERIFF DEPT., et al., ,
Defendants. )
MEMORANDUM AND ORDER
This matter is before the Court upon review of the file. Self-represented plaintiff Desmond
Hardy initiated this case on March 14, 2023 pursuant to 42 U.S.C. § 1983 against the Pike County
Sheriff's Department, Sheriff Stephen Korte, Office Manager Charlotte Shroeder, and Jail
Administrator Corrina Hallbeck in their official capacities.| ECF No. 1. Plaintiff alleged he was
subject to unsanitary conditions while detained at Pike County Jail. Submitted with the complaint
was a motion for leave to proceed in forma pauperis. ECF No. 2.
On March 20, 2023, the Court entered an order directing plaintiff to file a certified copy of
his inmate account statement for the six-month period immediately preceding the filing of his
complaint as required by 28 U.S.C. § 1915(a)(2). ECF No. 5. Plaintiff's response was due on April
20, 2023. Plaintiff submitted a letter to the Court, received on April 17, 2023, indicating he was in
administrative segregation and the institution misplaced his legal papers. ECF No. 7. In
consideration of plaintiffs pro se status and placement in administrative segregation, the Court,
! Plaintiff explicitly indicated he was suing defendants Korte and Hallbeck in their official capacities only. He did not
indicate what capacity he intended to sue defendant Shroeder. When a plaintiff does not specify whether a defendant
is being sued in his individual or official capacity, the court interprets the complaint as including only official-capacity
claims. Egerdahl v. Hibbing Cmty. Coll., 72 F.3d 615, 619 (8th Cir. 1995). This pleading requirement is strictly
enforced by the Eighth Circuit. See Murphy v. Arkansas, 127 F.3d 750, 755 (8th Cir. 1997).
on its own motion, provided him with additional time to comply. ECF No. 8. Plaintiff's response
was due on May 10, 2023. Plaintiff did not submit a statement within the time required.
On May 12, 2023, the Court reviewed plaintiff's complaint pursuant to 28 U.S.C. § 1915.
ECF No. 10. Although plaintiff did not submit his inmate account statement, the Court granted his
motion to proceed in forma pauperis based on the information provided in his application. The
Court then determined his claims against defendants were subject to dismissal. Plaintiffs claims
against the Pike’s County Sheriff's Department were subject to dismissal because it was not a
suable entity, and he did not provide any allegations to support a municipal liability claim. Jd. at
5-6. As for his official capacity claims against Korte, Shroeder, and Hallbeck, plaintiff failed to
assert how their employer was liable for their alleged conduct. Jd. at 6. The Court explained that a
suit against a public employee in his or her official capacity is merely a suit against the public
employer. Jd. Because plaintiff did not bring the instant action against defendants in their
individual capacities, the Court did not review any such claims.
In consideration of plaintiffs self-represented status, the Court directed him to file an
amended complaint to cure his pleading deficiencies. Plaintiff was mailed the appropriate Court-
form and provided specific instructions on how to submit his amendment. He was warned that his
failure to timely comply would result in the dismissal of this action without prejudice and without
further notice. Plaintiff had thirty (30) days, or until June 12, 2023, to file an amended complaint.
As of the date of this Order, plaintiff has not complied with the Court’s directive to amend
his complaint, nor has he sought additional time to do so. The Court gave plaintiff meaningful
notice of what was expected, cautioned him that his case would be dismissed if he failed to timely
comply, and gave him more than two weeks of additional time to comply before issuing this order.
Therefore, this action will be dismissed without prejudice due to plaintiff's failure to
comply with the Court’s May 12, 2023 Memorandum and Order and his failure to prosecute his
case. See Fed. R. Civ. P. 41(b); see also Brown v. Frey, 806 F.2d 801, 803-04 (8th Cir. 1986) (a
district court has the power to dismiss an action for the plaintiff's failure to comply with any court
order); Dudley v. Miles, 597 F. App’x 392 (8th Cir. 2015) (per curiam) (affirming dismissal
without prejudice where self-represented plaintiff failed to file an amended complaint despite
being cautioned that dismissal could result from failure to do so). This dismissal will not count as
a “strike” for purposes of 28 U.S.C. § 1915(g).
Accordingly,
IT IS HEREBY ORDERED that this action is DISMISSED without prejudice. A
"separate order of dismissal will be entered herewith.
IT IS HEREBY CERTIFIED that an appeal from this dismissal would not be taken in
good faith.
Dated this 28" day of June, 2023.
oh Kige □
UNITED STATES DISTRICT JUDGE