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
FAYETTEVILLE DIVISION
CODY C. GATEWOOD PLAINTIFF
v. Civil No. 5:22-cv-05119
SHERIFF SHAWN HOLLOWAY,
Benton County, Arkansas DEFENDANT
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. Plaintiff is incarcerated in the Benton County Detention Center.
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 June 23, 2022, Pete McCotry, Jr., attempted to file a civil rights action, Civil No 5:22-
cv-5118, on behalf of himself, David Shirley, and Cody Gatewood. Because a non-attorney may
not represent others, an Order was entered severing the claims of David Shirley and Cody
Gatewood and separate actions were opened for them. Plaintiff was ordered (ECF No. 2) to file
an in forma pauperis (“IFP”) application by July 14, 2022.
On July 20, 2022, a Show Cause Order (ECF No. 4) was entered due to Plaintiff’s failure
to file an IFP application. Plaintiff was given until August 10, 2022, to show cause why he failed
to comply with the Court’s Order (ECF No. 2).
To date, Plaintiff has not filed an IFP application or a response to the Show Cause Order.
Plaintiff has not sought an extension of time to comply with the Orders (ECF Nos. 2 & 4). No
1
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) of the Federal Rules of Civil Procedure 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).
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 22nd day of August 2022.
s/ Christy Comstock
CHRISTY COMSTOCK
UNITED STATES MAGISTRATE JUDGE
2