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
HARRISON DIVISION
PATRICK MICHAEL FINNEGAN PLAINTIFF
v. Civil No. 3:24-CV-03005-TLB-MEF
JAILER KEITH LEOPARD,
Boone County Detention Center DEFENDANT
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, Patrick Michael Finnegan, a prisoner, filed the above-captioned civil rights action
pursuant to 42 U.S.C. § 1983, generally alleging that the Defendant used excessive force against
him while he was detained at the Boone County Detention Center (“BCDC”) in violation of his
constitutional rights. 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.
Currently before the Court is Plaintiff’s failure to comply with the Court’s order directing
him to either submit a completed in forma pauperis (“IFP”) application or pay the full filing fee.
(ECF Nos. 3 & 6).
I. BACKGROUND
Plaintiff filed his Complaint on January 8, 2024. (ECF No. 1). Because Plaintiff is a
prisoner, 28 U.S.C. § 1915(a) requires him to submit a certified copy of his trust fund account
statement (or the institutional equivalent) to proceed in forma pauperis (“IFP”). See 28
U.S.C. § 1915(a)(2). In this case, although Plaintiff submitted an in forma pauperis (“IFP”)
application, that application was not complete because it did not include the required certified copy
of his trust fund statement. (ECF No. 2). Given this deficiency, this Court ordered Plaintiff to
either submit a complete IFP application or pay the full filing fee of $405.00 by January 29, 2024,
failing which this action would be subject to dismissal for failure to prosecute. (ECF No. 3). To
aid Plaintiff in complying with this Order, the Court also mailed Plaintiff a blank IFP application.
That order was not returned as undeliverable.
On January 31, 2024, Plaintiff submitted an IFP application. (ECF No. 5). But that IFP
application was also deficient because it did not include the signed certificate of inmate account
and assets form as required by law. Id. Accordingly, on February 1, 2024, this Court again ordered
Plaintiff to either submit a completed IFP application or pay the full filing fee by February 22,
2024, failing which this matter would be subject to dismissal. (ECF No. 6). The Court then sent
Plaintiff a second blank IFP application. That order was also not returned as undeliverable.
When the February 22, 2024, deadline passed without any response from Plaintiff, this
Court ordered Plaintiff to show cause why this matter should not be dismissed for failure to
prosecute. (ECF No. 7). The Court ordered Plaintiff to submit a response to the show cause order
by no later than March 19, 2024. Id. That order was not returned as undeliverable and the deadline
for responding has now passed. Plaintiff, however, has not communicated with the Court in any
way.
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 completed IFP application (ECF Nos. 3 & 6), and the Court’s
show cause order (ECF No. 7). 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 25th day of March 2024.
/s/
HON. MARK E. FORD
UNITED STATES MAGISTRATE JUDGE