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
HOT SPRINGS DIVISION
ZACHARY SHEETS PLAINTIFF
v. Civil No. 6:23-CV-06025-SOH-MEF
DOES 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 Court Orders and failure to prosecute this
case.
I. BACKGROUND
Plaintiff filed his Complaint in the Eastern District of Arkansas on March 6, 2023. (ECF
No. 1). It was transferred to this District that same day. On April 17, 2023, the Court entered an
Order directing Plaintiff to submit an Amended Complaint by May 8, 2023, to correct deficiencies
in his initial Complaint. (ECF No. 5). When Plaintiff failed to do so, the Court entered a Show
Cause Order directing a Response by June 6, 2023. (ECF No. 6). This Order was returned as
undeliverable on May 30, 2023. (ECF No. 7). On June 29, 2023, Plaintiff contacted the Court by
telephone, indicated he had been released from custody, and provided a new address. Because
Plaintiff was no longer incarcerated, the Court entered an Order directing Plaintiff to submit an in
forma pauperis application reflecting his free-world financial status by July 21, 2023. (ECF No.
8). Plaintiff did so on July 17, 2023, and was granted IFP status on July 18, 2023. (ECF Nos. 9,
10).
On July 25, 2023, the Court entered a second Order directing Plaintiff to submit an
Amended Complaint. (ECF No. 11). When Plaintiff again failed to do so, the Court entered a
Second Show Cause Order directing a Response by September 12, 2023. (ECF No. 12). This
Order was not returned as undeliverable. To date, Plaintiff has failed to submit an Amended
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 19th day of September 2023.
/s/
HON. MARK E. FORD
UNITED STATES MAGISTRATE JUDGE