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
DEAN LEONARD BURNETT PLAINTIFF
v. Civil No. 3:21-cv-03065-TLB-MEF
CAPTAIN JAMES LOOKINGBILL and
CORPORAL KOSTER DEFENDANTS
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
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. 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 the Orders of the Court.
I. DISCUSSION
On April 14, 2022, Defendants filed a Motion for Summary Judgment. (ECF No. 20).
On April 15, 2022, an Order (ECF No. 23) was entered directing Plaintiff to file a response to the
Motion for Summary Judgment by May 6, 2022. Plaintiff was advised that failure to respond to
the Order would result in: (a) all the facts set forth by the Defendants in the summary judgment
papers being deemed admitted by the Plaintiff, and/or (b) shall subject the case to dismissal,
without prejudice.
Plaintiff did not file a response to the Motion for Summary Judgment by May 6, 2022. On
May 17, 2022, a Show Cause Order (ECF No. 25) was entered. Plaintiff was given until June 7,
2022, to show cause why he failed to obey the Order of the Court. 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 response to the Motion for Summary Judgment or a
response to the Show Cause Order. He has not requested an extension of time to file his
responses. No mail has been returned as undeliverable. Plaintiff has failed to comply with the
Court’s Orders. (ECF Nos. 23, 25).
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, pursuant to Rule 41(b), the Plaintiff’s Complaint
(ECF No. 1) be DISMISSED WITHOUT PREJUDICE 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
the district court.
DATED this 13th day of June 2022.
/s/
HON. MARK E. FORD
UNITED STATES MAGISTRATE JUDGE