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
FORT SMITH DIVISION
JOSEPH JONES, JR. PLAINTIFF
v. Civil No. 2:22-cv-02033
OFFICER JAMES, DEFENDANTS
Sebastian County Detention Center
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This is a civil rights action filed under 42 U.S.C. § 1983. Pursuant to the provisions of 28
U.S.C. § 636(b)(1) and (3), the Honorable P. K. Holmes, III, 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 failure to
prosecute this case.
I. BACKGROUND
On February 15, 2022, Plaintiff, Joseph Jones, Jr. (“Jones”), filed his complaint, along with
an application to proceed in forma pauperis (“IFP”). (EFC Nos. 1, 2). Jones claims the Defendant,
Officer James (“James”), used excessive force when he choked Jones on February 3, 2022, at the
Sebastian County Detention Center, causing injury to his throat. (EFC No. 1 at 4). Jones said
Defendant James did it for no reason, and Jones is seeking $500,000 for medical bills and pain and
suffering. (Id. at 5).
Jones was ordered to provide the Court with a completed certificate of account in support
of his application to proceed IFP. (EFC No. 3). The Order stated that additional information was
needed to rule on the IFP application, and Jones was advised that failure to comply with the Order
within the time period specified (by March 8, 2022) could result in summary dismissal for failure
to obey a court order. (Id. at 1). The Order also stated that failure to inform the Court of an address
change shall result in the dismissal of this case. (Id. at 2). The Order was mailed to Jones at the
Sebastian County Detention Center (his last known address) but was returned as “not deliverable
as addressed” on February 28, 2022. (EFC No. 5). Jones was required to provide the Court with
his new address by March 30, 2022, but he has failed to do so. (EFC No. 3 at 1).
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
Jones must comply with substantive and procedural law. Jones must also comply with any
order of the Court or risk having his case dismissed. Jones did not notify the Clerk, and the other
parties to the proceeding, that his address has changed. Mail sent to Jones at the Sebastian County
Detention Center, his last known address, was returned to the Court as undeliverable. Jones has
not given proper notification of his address change, in violation of Local Rule 5.5(c)(2). Likewise,
Jones’ failure to respond within 30-days to the IFP Order is in violation of Rule 5.5(c)(2). Further,
by failing to respond to the IFP Order Jones has violated Fed. R. Civ. P. 41(b), which requires him
to comply with any court order.
IV. CONCLUSION
For the reasons stated above, it is recommended that Plaintiff’s Complaint (ECF No. 1) be
DISMISSED WITHOUT PREJUDICE.
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 12th day of April 2022.
/s/
HON. MARK E. FORD
UNITED STATES MAGISTRATE JUDGE