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
HARRISON DIVISION
DONALD JASON LEWIS PLAINTIFF
v. Civil No. 3:22-cv-03014-TLB-MEF
HEIDI PARKER, Jail Administrator,
Searcy County Detention Center; and
JAIL ADMINISTRATOR TRACY
SUTTERFIELD DEFENDANTS
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. §§ 636(b)(1) and (3), the Honorable Timothy L.
Brooks, 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 pursuant to 42 U.S.C. § 1983. Plaintiff
proceeds pro se and in forma pauperis. Plaintiff is incarcerated in the Searcy County Detention
Center.
This case was originally filed in the Eastern District of Arkansas. Prior to the transfer of
the case to this Court, Plaintiff was ordered (ECF No. 6) by Magistrate Judge J. Thomas Ray to
file a Second Amended Complaint by December 29, 2021. On April 6, 2022, the case was
transferred to this district. On April 8, 2022, a Show Cause Order (ECF No. 12) was entered.
Plaintiff was directed to show cause by April 29, 2022, why he had failed to file the Second
1
Amended Complaint. Plaintiff was advised that if he failed to respond to the Show Cause Order
the case “shall be subject to dismissal.”
To date, Plaintiff has not filed a Second Amended Complaint or responded to the Show
Cause Order. No mail has been returned as undeliverable.
The Federal Rules of Civil Procedure specifically contemplate dismissal of a case on the
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 Plaintiff’s failure to prosecute this case, his failure
to obey the orders 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 (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
2
the district court.
DATED this 4th day of May 2022.
/s/
HON. MARK E. FORD
UNITED STATES MAGISTRATE JUDGE
3