Opinion

Smith v. McLean

Court
District Court, W.D. Arkansas
Filed
Aug 8, 2024
Cited by
0 cases
Authority
More cited than 31.2%

The opinion

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

TEXARKANA DIVISION

CURTIS WAYNE DALE SMITH, JR PLAINTIFF

v. Case No. 4:24-cv-4025

JOAN MCLEAN; OFFICER

JOE DOE; and OFFICER TODD TALLANT DEFENDANTS

ORDER

Before the Court is Plaintiff Curtis Wayne Dale Smith, Jr.’s failure to comply with Court

Orders and prosecute this matter. Plaintiff originally submitted this 42 U.S.C. § 1983 action pro

se on March 28, 2024. ECF No. 1. Plaintiff submitted an Application to proceed in forma pauperis

(“IFP”) on the same day. ECF No. 2. The Court granted Plaintiff’s IFP Application (ECF No. 3),

and then entered an order (ECF No. 6) consolidating Case Numbers 4:25-cv-04025, 4:24-cv-

04027, and 4:24-cv-04028, with this case as the lead case.

On April 26, 2024, the Court entered an Order directing the Plaintiff to file an Amended

Complaint which would consolidate all claims alleged in Case Numbers 4:25-cv-04025, 4:24-cv-

04027, and 4:24-cv-04028 into a single pleading. ECF No. 7. Plaintiff’s Amended Complaint

was due on May 17, 2024. Id. This Order was not returned as undeliverable mail, but Plaintiff

failed to respond. On May 21, 2024, the Court entered an Order to show cause why he failed to

comply with the Court’s April 26, 2024, Order and submit an Amended Complaint. ECF No. 8.

Plaintiff’s response was due on June 11, 2024. This Order to show cause was not returned as

undeliverable mail but Plaintiff failed to respond. Plaintiff has not communicated with the Court

since originally filing his Complaint on March 28, 2024. ECF No. 1.

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 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).

Here, Plaintiff has wholly failed to prosecute this case and comply with the Court’s Orders.

Plaintiff never communicated with this Court after his case was initially filed despite two Court

Orders to do so. Therefore, pursuant to Federal Rule of Civil Procedure 41(b) and Local Rule

5.5(c)(2), the Court finds Plaintiff’s Complaint (ECF No. 1) should be and is hereby DISMISSED

WITHOUT PREJUDICE.1

0F

IT IS SO ORDERED, this 8th day of August, 2024.

/s/ Susan O. Hickey

Susan O. Hickey

Chief United States District Judge

1 Plaintiff’s complaints in the cases consolidated with this matter, Nos. 4:24-cv-4027 and 4:24-cv-4028, are likewise

DISMSSED WITHOUT PREJUDICE.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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