stating that the district court possesses the power to dismiss sua sponte under Rule 41(b)
How later courts described this case
- stating that the district court possesses the power to dismiss sua sponte under Rule 41(b)
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
FRANK EARL RAY PLAINTIFF
v. Civil No. 6:19-CV-06084
DEPUTY GRAHAM and NEVADA DEFENDANTS
COUNTY, AR
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This is a civil rights action provisionally filed pursuant to 42 U.S.C. § 1983. Pursuant to
the provisions of 28 U.S.C. § 636(b)(1) and (3) (2011), the Honorable Susan O. Hickey, United
States District Judge, referred this case to the undersigned for the purpose of making a Report and
Recommendation.
Currently before the Court is Plaintiff’s failure to obey a Court Order and to prosecute this
case.
I. BACKGROUND
Plaintiff filed his Complaint in the Eastern District of Arkansas on July 10, 2019. (ECF
No. 2). It was transferred to this District on July 15, 2019. (ECF No. 3). On July 16, 2019, the
Court entered Orders directing Plaintiff to file a completed in forma pauperis application and an
Amended Complaint by August 6, 2019. Plaintiff was advised that failure to provide these
documents by the deadline would result in the dismissal of his case. (ECF No’s. 6, 7). On July
22 and August 5, 2019, mail sent to Plaintiff was returned to the Court as undeliverable. (ECF
No’s. 8, 9). Plaintiff has not filed the documents as ordered and has never communicated directly
with this Court.
II. LEGAL STANDARD
Although pro se pleadings are to be construed liberally, a pro se litigant is not excused
from complying with substantive and procedural law. Burgs v. Sissel, 745 F.2d 526, 528 (8th Cir.
1984). The local rules state in pertinent part:
It is the duty of any party not represented by counsel to promptly notify the Clerk
and the other parties to the proceedings of any change in his or her address, to
monitor the progress of the case, and to prosecute or defend the action diligently . .
. . If any communication from the Court to a pro se plaintiff is not responded to
within thirty (30) days, the case may be dismissed without prejudice. Any party
proceeding pro se shall be expected to be familiar with and follow the Federal Rules
of Civil Procedure.
Local Rule 5.5(c)(2).
Additionally, the Federal Rules of Civil Procedure specifically contemplate dismissal of a
case on the grounds that the plaintiff failed to prosecute or failed to comply with orders of the
court. Fed. R. Civ. P. 41(b); Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962) (stating that
the district court possesses the power to dismiss sua sponte under Rule 41(b)). Pursuant to Rule
41(b), a district court has the power to dismiss an action based on “the plaintiff’s failure to comply
with any court order.” Brown v. Frey, 806 F.2d 801, 803-04 (8th Cir. 1986) (emphasis added).
III. ANALYSIS
Plaintiff has failed to keep the Court apprised of his current address as required by Local
Rule 5.5(c)(2). Plaintiff has failed to comply with a Court Order. Plaintiff has failed to prosecute
this matter. Accordingly, pursuant to Federal Rule of Civil Procedure 41(b) and Local Rule
5.5(c)(2), it is recommended that Plaintiff’s Complaint be dismissed without prejudice for failure
to comply with the Court’s Local Rules and Orders and failure to prosecute this case.
The parties have fourteen (14) days from receipt of the Report and Recommendation
in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely
objections may result in waiver of the right to appeal questions of fact. The parties are
reminded that objections must be both timely and specific to trigger de novo review by the
district court.
DATED this 21st day of August 2019.
/s/
HON. MARK E. FORD
UNITED STATES MAGISTRATE JUDGE