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
FORT SMITH DIVISION
CHARLES DAVID LACY PLAINTIFF
v. Civil No. 2:23-CV-02069-PKH-MEF
SHERIFF HOBE RUNION;
OFFICER FLETCHER; OFFICER KERRY;
and CORPORAL HUEY 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 P. K. Holmes, III, 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 failure to comply with the Court’s order to submit
an updated in forma pauperis (IFP) application reflecting his “free world” financial status and
failure to prosecute this case.
I. BACKGROUND
Plaintiff filed his Complaint on May 23, 2023, generally alleging unconstitutional
conditions of confinement, medical indifference, and excessive force at the Sebastian County
Detention Center (“SCDC”). (ECF No. 1). On that same day, the Court directed Plaintiff to either
pay the filing fee or submit a complete in forma pauperis (IFP) application by June 13, 2023,
failing which this Court would recommend that this matter be dismissed for failure to prosecute.
(ECF No. 2). That Order was returned as undeliverable and then re-sent to Plaintiff’s updated
address. (ECF No. 4). Because Plaintiff’s updated address suggested that Plaintiff was no longer
incarcerated, the Court ordered Plaintiff to either pay the filing fee or submit an IFP application
reflecting his “free world” financial status by July 7, 2023, failing which this matter would be
subject to dismissal. (ECF No. 5). That order was not returned as undeliverable. When Plaintiff
failed to file any response by June 13, 2023, or July 7, 2023, this Court ordered Plaintiff to show
cause why this matter should not be dismissed for failure to prosecute. (ECF No. 6). The Court
imposed a deadline of August 4, 2023, to respond to the order to show cause. Id. That deadline
has now passed, and Plaintiff has not responded. In fact, the Plaintiff has not communicated with
the Court in any way since he provided his updated address on or about June 2, 2023.
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 three court orders: the Court’s orders directing him to
either pay the filing fee or submit a complete IFP application (ECF Nos. 2 & 5), and the Court’s
show cause order (ECF No. 6). Plaintiff has failed to prosecute this case. Accordingly, pursuant
to Federal Rule of Civil Procedure 41(b) and Local Rule 5.5(c)(2), it is recommended that
Plaintiff’s Complaint be dismissed without prejudice for failure to comply with the Court’s Local
Rules and Orders and for failure to prosecute this case.
IV. CONCLUSION
For the reasons discussed above, 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 14th day of August 2023.
/s/
HON. MARK E. FORD
UNITED STATES MAGISTRATE JUDGE