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
FAYETTEVILLE DIVISION
GILBERTO RUELAS, JR. PLAINTIFF
v. Civil No. 5:24-cv-05187-CDC-TLB
JOHN DOE GOVERNMENT ENTITY DEFENDANT
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
Plaintiff, Gilberto Ruelas, Jr. (“Ruelas”), filed this civil rights action pursuant to 42 U.S.C.
§ 1983. He proceeds pro se. To date, Ruelas has not submitted an application to proceed in
forma pauperis (“IFP”) or paid the $405 filing fee.
The case was directly assigned to the undersigned Magistrate Judge. However, because
not all parties to the action have consented to the jurisdiction of the undersigned, and this document
will be dispositive of Ruelas’ claims, this document will be filed as a Report and Recommendation
and the case will automatically be reassigned to United States District Judge Timothy L. Brooks.
28 U.S.C. § 636(c); Rule 73 of the Federal Rules of Civil Procedure, and General Order 2024-02.
The case is before the Court on the Ruelas’ failure to obey an Order of the Court.
I. DISCUSSION
When he filed this case, Ruelas was incarcerated in the Benton County Detention Center
(“BCDC”). Ruelas was specifically advised that he was required to immediately inform the Court
of any change of address. (ECF No. 2). Ruelas was told to submit a change of address in a
separate document entitled “Notice to the Court of Address Change.” Id. Ruelas was also
directed to submit an Amended Complaint and a complete IFP application or pay the $405 filing
fee by September 25, 2024. Id.
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On September 25, 2024, mail was returned as undeliverable with a notation that Ruelas
was no longer in the BCDC. (ECF No. 4). On October 2, 2024, Ruelas, contrary to the Court’s
explicit instructions, sent an e-mail to the undersigned providing his new address. The Clerk was
directed to change his address. On October 3, 2024, Court staff notified Ruelas that he was not
allowed to communicate with the undersigned by e-mail. Ruelas was additionally advised that he
had a complete IFP application and Amended Complaint that had been due to the Court on
September 25, 2024. On October 4, 2024, due to his change of address, Ruelas’ deadline to
submit the requested documents was extended to October 25, 2024. (ECF No. 5). Ruelas did
not submit the documents.
As a matter of procedural fairness and to give Ruelas another opportunity to comply with
the Court’s Orders, a Show Cause Order was entered on October 28, 2024. (ECF No. 6). Ruelas
was advised that he had failed to submit his IFP application and Amended Complaint by the
Court’s deadline. Id. He was given until November 18, 2024, to show cause for this failure. Id.
To date, Ruelas has not communicated with the Court. He has not filed his IFP application
or his Amended Complaint. No mail has been returned as undeliverable.
The Federal Rules of Civil Procedure specifically contemplate dismissal of a case on the
ground that the plaintiff failed to prosecute or failed to comply with an order of the court. Fed.
R. Civ. P. 41(b); Line 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).
Additionally, Rule 5.5(c)(2) of the Local Rules for the Eastern and Western Districts of Arkansas
requires parties appearing pro se to monitor the case, and to prosecute or defend the action
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diligently. Plaintiff has wholly failed to prosecute this case.
II. CONCLUSION
For this reason, it is recommended that this case be DISMISSED WITHOUT
PREJUDICE pursuant to Rule 41(b) of the Federal Rules of Civil Procedure and Rule 5.5(c)(2)
of the Local Rules for the Eastern and Western Districts of Arkansas.
The parties have fourteen 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.
Status of Referral: The referral terminated upon the filing of this Report and
Recommendation.
RECOMMENDED this 25th day of November 2024.
s/ Christy Comstock
CHRISTY COMSTOCK
UNITED STATES MAGISTRATE JUDGE
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