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
WILLIE J. WALKER, III PLAINTIFF
v. Civil No. 6:24-cv-06048-SOH-MEF
DR. GUY HENRY (Wellpath LLC) and
WELLPATH LLC 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 two Court Orders and failure to prosecute
this case. Also before the Court is Defendants’ Motion for Summary Judgment on the Issue of
Exhaustion. (ECF No. 12).
I. BACKGROUND
Plaintiff filed his Complaint on April 8, 2024. (ECF No. 1). On April 9, 2024, the Court
entered an Order directing Plaintiff to submit an Amended Complaint, which he did on April 17,
2024. (ECF Nos. 6, 7).
Defendants filed their Motion for Summary Judgment on the Issue of Exhaustion on April
23, 2024. (ECF No. 12). On April 29, 2024, the Court entered an Order directing Plaintiff to
submit his Summary Judgment Response by May 20, 2024. (ECF No. 15). When Plaintiff failed
to do so, the Court entered a Show Cause Order, directing Plaintiff to show cause for his failure to
submit a summary judgment response by June 20, 2024. (ECF No. 17). Neither of these Orders
was returned as undeliverable.
To date, Plaintiff has filed to file either a Summary Judgment Response or a Show Cause
Response. He has not communicated with the Court since filing a Notice of Address change on
April 19, 2024. (ECF No. 8).
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 Amended Complaint (ECF No. 7) be
DISMISSED WITHOUT PREJUDICE. It is further recommended that Defendants’ Motion for
Summary Judgment on the Issue of Exhaustion be DISMISSED as MOOT.
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.
Referral Status: This case should not remain referred as all matters have been
recommended for dismissal in this Report and Recommendation.
DATED this 10th day of July 2024.
/s/
HON. MARK E. FORD
UNITED STATES MAGISTRATE JUDGE