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
TEXARKANA DIVISION
BRION DAY SHAWN BROWN PLAINTIFF
v. Civil No. 2:22-CV-04075-SOH-BAB
DEBRA JORDAN, Jailer/Nurse, Nevada
County Jail DEFENDANTS
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 a Court Order and failure to prosecute this
case.
I. BACKGROUND
Proceeding pro se, Plaintiff, an inmate at the Nevada County Detention Center (NCDC),
initially filed this civil rights complaint in the Eastern District of Arkansas on August 24, 2022,
generally alleging that he has been wheezing and experiencing a shortness of breath since he was
sold e-cigarettes at the NCDC, but he has not seen a doctor, despite putting in a grievance. (ECF
No. 2). The Eastern District of Arkansas ordered the case be transferred to this District on August
26, 2022, because NCDC—where Plaintiff is currently incarcerated and where the allegations
underpinning Plaintiff’s claims took place—is located in this District. (ECF No. 3).
On August 29, 2022, this Court issued an Order directing Plaintiff to file an Amended
Complaint and submit a complete in forma pauperis (IFP) application by September 20, 2022.
Plaintiff was warned that failure to comply with this Order would result in a recommendation this
matter be dismissed for failure to prosecute. (ECF No. 7). This Order was not returned as
undeliverable. On September 27, 2022, this Court issued an order directing Plaintiff to show cause
why this matter should not be dismissed for failure to comply with the August 29, 2022, order.
(ECF No. 8). In response, the Court received a letter from Plaintiff informing the Court that he is
not able to pay the fee because he is “just sitting [at the Nevada County Jail] and the jail wont [sic]
take the money off my book’s [sic] because it’s against them.” (EF No. 9). The Court has received
no further communication from Plaintiff and the deadline for submitting an amended complaint
and a complete IFP application has long ago passed.
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 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
Here, Plaintiff has failed to comply with the Court’s order directing him to submit an
amended complaint and a complete IFP application. (ECF No. 7). Plaintiff’s contention that he
failed to comply with the Court’s orders because he cannot pay the filing fee and the facility will
not deduct the money from his books is not persuasive. Because Plaintiff qualifies as “prisoner,”
this case is subject to the requirements of the Prison Litigation Reform Act (PRLA). See 28 U.S.C.
§ 1915 et seq. As such, if Plaintiff qualifies to proceed in forma pauperis (IFP), he is not excused
from paying the full filing fee. Rather, under 28 U.S.C. § 1915(b), after paying the initial partial
filing fee, Plaintiff is required to pay the balance of the filing fee in installments, regardless of
whether he succeeds in his action. Id. The first step, however, is for Plaintiff to submit the
necessary financial information so that the Court can calculate the initial partial filing fee. Plaintiff
offers no reasonable explanation as to why he has not submitted the required information—
specifically a copy of his certificate of inmate account—within the timeframe provided. Plaintiff’s
purported concerns about the collection of this money—allegations that the facility will not deduct
the money from his account—does not excuse him from submitting the required financial
information.
The filing fee is only one side of the coin. Because of Plaintiff’s status as a “prisoner,” his
complaint is also subject to preservice screening pursuant to 28 U.S.C. § 1915A(a). Upon
preliminary review under 28 U.S.C. § 1915A(a), this Court directed Plaintiff to submit an amended
complaint to correct potential legal and factual deficiencies with the Complaint. Plaintiff failed to
do so, and he offers no explanation as to why he did not comply with this aspect of the Court’s
order. Accordingly, because Plaintiff has not offered a reasonable explanation for his failure to
comply with the Court’s order, (ECF No. 7), this Court recommends that Plaintiff’s complaint be
dismissed for failure to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.
IV. CONCLUSION
For the reasons discussed above, it is recommended that Plaintiff’s Complaint (ECF No.
2) 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 24th day of October 2022.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE