# Potter v. Pike County Sheriff's Department

> District Court, W.D. Arkansas · September 12, 2022

URL: https://www.frixlaw.com/law-library/cases/10632439

## Case

- **Court:** District Court, W.D. Arkansas
- **Decided:** September 12, 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/10632439

## 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

CURTIS LEE POTTER PLAINTIFF

v. Civil No. 6:22-cv-06077-SOH-MEF

PIKE COUNTY SHERIFF’S DEPARTMENT DEFENDANT

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 Susan O. Hickey, Chief 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 two Court Orders, and failure to
prosecute this case.
I. BACKGROUND
Plaintiff filed his Complaint on July 11, 2022. (ECF No. 1). That same day, the Court
entered an Order directing Plaintiff to submit a completed in forma pauperis (“IFP”) application
and an Amended Complaint by August 1, 2022, or his Complaint would be subject to dismissal.
(ECF No. 3). This Order was not returned as undeliverable. On August 16, 2022, the Court
entered a Show Cause Order directing Plaintiff to show cause by September 6, 2022, for his
failure to submit a completed IFP application or an Amended Complaint. (ECF No. 5). Plaintiff
was again advised that if he failed to respond by the deadline, his case would be subject to
dismissal. (Id.). This second Order was not returned as undeliverable. To date, Plaintiff has not
submitted his Show Cause Response, his completed IFP application, or his Amended Complaint.
His last communication with the Court was on July 11, 2022, when he filed his Complaint.
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 two 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’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 September 2022.
/s/
HON. MARK E. FORD
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10632439. Public record. Not legal advice.