“A 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 . . . .”
How later courts described this case
- “A 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 . . . .”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MARTIN DWAYNE ISAIA MITCHELL, )
)
Movant, )
v. ) No. 4:24-cv-00100 SEP
)
UNITED STATES OF AMERICA, )
)
Respondent. )
MEMORANDUM AND ORDER
This matter is before the Court on its own motion. On November 7, 2023, Movant
mailed a pro se motion to the Court requesting permission to file a notice of appeal out of time in
his closed criminal case, United States v. Mitchell, Case No. 4:21-cr-00252-SEP. In the motion,
Movant indicated that he wanted to appeal his conviction, but his attorney did not timely file a
notice of appeal. See Doc. [1]. The Court construed the filing as a motion for relief from
judgment, administratively terminated the motion, and opened this civil action under 28 U.S.C.
§ 2255. See id. at 5.
On February 1, 2024, the Court issued an order informing Movant that when a court sua
sponte characterizes a filing as a § 2255 motion, the movant must be given the opportunity to
either consent to the classification or withdraw the filing. See Doc. [2]; see also Morales v.
United States, 304 F.3d 764, 767 (8th Cir. 2002). Movant was required to file an amended
§ 2255 motion on a Court-provided form to consent to the reclassification. The Court warned
movant that failure to timely comply with the Order would result in dismissal of this action,
without prejudice and without further notice.
Movant’s response was due on March 1, 2024. He has not complied with the Court’s
Order or sought additional time to do so. The Court gave movant meaningful notice of what
was expected, cautioned him that his case would be dismissed if he failed to timely comply, and
gave him additional time to comply. Therefore, this action is dismissed without prejudice due
to movant’s failure to comply with the Court’s February 1, 2024, 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 under Fed. R. Civ. P. 41(b) to dismiss an action
for the plaintiff’s failure to comply with any court order . . . .”); see also Dudley v. Miles, 597 F.
App’x 392 (8th Cir. 2015) (per curiam) (affirming dismissal without prejudice where pro se
plaintiff failed 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. 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 11" day of March, 2024.
hank ieZ.
SARAH E. PITLYK
UNIED STATES DISTRICT JUDGE