# Benton v. Ball

> District Court, W.D. Arkansas · August 8, 2022

URL: https://www.frixlaw.com/law-library/cases/10632397

## Case

- **Court:** District Court, W.D. Arkansas
- **Decided:** August 8, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10632397

## How later opinions describe it (automated extraction)

- stating that the district court possesses the power to dismiss sua sponte under Rule 41(b)

## Opinion text

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION

JOHNNY AUSTIN BENTON PLAINTIFF

v. Civil No. 6:22-CV-06047-RTD-BAB

TODD BALL, et. al. DEFENDANTS

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This is a civil rights action filed pursuant to 42 U.S.C. § 1983. Pursuant to the provisions
of 28 U.S.C. § 636(b)(1) and (3), the Honorable Robert T. Dawson, Senior 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 three Court Orders and
failure to prosecute this case.
I. BACKGROUND
Plaintiff filed his Complaint in the Eastern District of Arkansas on April 26, 2022. (ECF
No. 1). It was transferred to this District on April 28, 2022. (ECF No. 5). That same day, the
Court entered Orders directing Plaintiff to file a completed in forma pauperis (“IFP”) application
and an Amended Complaint by May 19, 2022. (ECF Nos. 7, 8). Both Orders advised Plaintiff
that failure to submit the required documents by the deadline would result in the dismissal of his
case. (Id.). When Plaintiff failed to submit either a completed IFP or an Amended Complaint, the
Court entered a Show Cause Order directing Plaintiff to explain his failure to obey two Court
Orders by June 14, 2022. (ECF No. 9). This Order also advised Plaintiff that failure to respond
by the deadline would result in the dismissal of his case. (Id.). This Order was not returned as
undeliverable.
To date, Plaintiff has failed to submit his IFP application, his Amended Complaint, and his
Show Cause Response.
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 comply with three Court Orders. Plaintiff has failed to prosecute this
matter. Accordingly, pursuant to Federal Rule of Civil Procedure 41(b) and Local Rule 5.5(c)(2)
Plaintiff’s Complaint should be dismissed without prejudice for failure to comply with the Court’s
Local Rules and Orders and failure to prosecute this case.
IV. CONCLUSION
Accordingly, it is recommended that Plaintiff Complaint (ECF No. 1) be DISMISSED
WITHOUT PREJUDICE.
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 8th day of August 2022.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10632397. Public record. Not legal advice.