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
LUCAS LINDEN NUNNELEE PLAINTIFF
v. Civil No. 6:22-CV-06008-RTD-BAB
DR. DARRELL ELKIN DEFENDANT
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 third failure to obey a Court Order and
failure to prosecute this case.
I. BACKGROUND
Plaintiff filed his Complaint on January 14, 2022. (ECF No. 1). That same day, the Court
entered an Order granting Plaintiff in forma pauperis (“IFP”) status. (ECF No. 4). In that Order,
Plaintiff was advised that he must inform the Court of any change in address within thirty (30)
days of that change, or his case would be subject to dismissal. (Id.). The Court entered a second
Order on January 14, 2022, directing Plaintiff to file an Amended Complaint by February 4, 2022.
(ECF No. 6).
On February 7, 2022, Plaintiff filed a Notice of Address Change, informing the Court that
he had been transferred to the Arkansas Division of Correction Ouachita River Unit. (ECF No. 7).
Due to the timing of this transfer, the Court entered a second Order directing Plaintiff to file an
Amended Complaint, this time by March 1, 2022. (ECF No. 8). On March 10, 2022, ten days
after the Amended Complaint was due, Plaintiff filed a Motion for Extension of time to file his
Amended Complaint. (ECF No. 9). This Motion was granted, and Plaintiff was given until April
1, 2022, to file his Amended Complaint. (ECF No. 10). Both Orders advised Plaintiff that failure
to submit the Amended Complaint by the deadline would result in the dismissal of his case. (ECF
Nos. 8, 10). Neither Order was returned to the Court as undeliverable. Plaintiff failed to submit
an Amended Complaint.
Based on these facts, the undersigned entered a Report and Recommendation (“R&R”) on
April 21, 2022, recommending that Plaintiff’s case be dismissed without prejudice for his failure
to comply with two Court Orders and failure to prosecute this case. (ECF No. 11). Plaintiff filed
an Objection to the R&R on May 13, 2022, stating that he had misplaced his Complaint form.
(ECF No. 12). On May 23, 2022, Judge Dawson entered an Order permitting Plaintiff another
opportunity to submit his Amended Complaint. (ECF No. 13). In the Order, Plaintiff was advised
that failure to submit his Amended Complaint by the deadline would result in the dismissal of his
case. (Id.). Plaintiff submitted his Amended Complaint on June 13, 2022. (ECF No. 14). Due to
deficiencies in the Amended Complaint, the undersigned entered an Order on June 14, 2022,
advising Plaintiff of the deficiencies and directing him to file a Second Amended Complaint by
July 5, 2022. (ECF No. 15). Plaintiff was again advised that failure to submit his Amended
Complaint 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 file his Amended Complaint, and has not
otherwise communicated with the Court.
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 a third Court Order. 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’s 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