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
CALVIN DAVIS PLAINTIFF
v. Civil No. 6:21-cv-06056
SUPERVISOR JOE JONES, Trinity
Services Group; SHERIFF MIKE
MCCORMICK, et al. DEFENDANTS
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. §§ 636(b)(1) and (3), the Honorable Susan O.
Hickey, United States District Judge, referred this case to the undersigned for the purpose of
making a Report and Recommendation. The case is before the Court on Plaintiff’s failure to obey
an Order of the Court.
I. DISCUSSION
This is a civil rights action filed by the Plaintiff, Calvin Davis (“Davis”), pursuant to 42
U.S.C. § 1983. Davis proceeds pro se. Davis is incarcerated in the Garland County Detention
Center.
By Order (ECF No. 2) entered on April 28, 2021, Davis was directed to file an amended
complaint and an application to proceed in forma pauperis (“IFP”). The amended complaint and
IFP application were to be filed by May 27, 2021. Davis was advised that if he failed to comply
with the Order the case “shall be subject to dismissal.”
To date, Davis has not filed an amended complaint or an IFP application. Davis has not
sought an extension of time to comply with the Order. No mail has been returned as
undeliverable.
The Federal Rules of Civil Procedure specifically contemplate dismissal of a case on the
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ground that the plaintiff failed to prosecute or failed to comply with an order of the court. Fed.
R. Civ. P. 41(b); Line 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).
Additionally, Rule 5.5(c)(2) of the Local Rules for the Eastern and Western Districts of Arkansas
requires parties appearing pro se to monitor the case, and to prosecute or defend the action
diligently.
II. CONCLUSION
For these reasons, it is recommended that this case be DISMISSED WITHOUT
PREJUDICE pursuant to Rule 41(b), based on Davis’ failure to prosecute this case, his failure to
obey the Order of the Court, and his failure to comply with Local Rule 5.5(c)(2). Fed. R. Civ. P.
41(b).
The parties have fourteen 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 17th day of June 2021.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE
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