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
HARRY C. STUTESMAN PLAINTIFF
v. Civil No. 5:22-cv-05124
KARAS HEALTH; and NURSE
KELLY HINELY DEFENDANTS
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 and in forma pauperis. 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 September 6, 2022, Plaintiff filed a Motion to Amend his Complaint to add defendants.
(ECF No. 13). The Motion was granted, and Plaintiff directed to submit his Amended Complaint
by October 7, 2022. (ECF No. 15). Plaintiff did not file his Amended Complaint and did not
request an extension of time to do so.
On October 20, 2022, a Show Cause Order was entered. (ECF No. 20). Plaintiff was
given until November 10, 2022, to show cause why he failed to obey the Order of the Court.
Plaintiff was advised that if he failed to respond to the Show Cause Order the case shall be subject
to dismissal.
To date, Plaintiff has not filed his Amended Complaint or a response to the Show Cause
Order. He has not requested an extension of time to file his response to the Show Cause Order.
No mail has been returned as undeliverable. Plaintiff has failed to comply with the Court’s Orders
(ECF Nos. 15 & 20).
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 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.
Il. CONCLUSION
For these reasons, it is recommended that, pursuant to Rule 41(b) of the Federal Rules of
Civil Procedure, the case be DISMISSED WITHOUT PREJUDICE based on Plaintiffs 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 (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 21st day of December 2022.
( Atty Cometeck
CHRISTY COMSTOCK
UNITED STATES MAGISTRATE JUDGE