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
LARRY ALLEN LYMAN PLAINTIFF
v. Civil No. 5:24-cv-05193-TLB-CDC
NURSE TRACEY ROBINSON, Turn Key
Health Clinics, LLC; and TURN KEY HEALTH
CLINICS, LLC DEFENDANTS
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
This is a civil rights action filed by the Plaintiff, Larry A. Lyman (“Lyman”), pursuant to
42 U.S.C. § 1983. Lyman proceeds pro se and in forma pauperis. 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.
The case is before the Court on the Motion to Dismiss filed by Separate Defendant Turn Key
Health Clinics, LLC, and Lyman’s failure to obey the Court’s Orders.
I. DISCUSSION
On November 5, 2024, Turn Key Health Clinics, LLC, filed a Motion to Dismiss. (ECF
No. 15). On November 6, 2024, an Order was entered directing Lyman to respond to the Motion
by November 27, 2024. (ECF No. 18). Lyman was advised that failure to “timely and properly
comply with this Order shall result in the dismissal of this action pursuant to Local Rule 5.5(c)(2).”
Id.
This Order was returned as undeliverable and resent to the correct address on November
19, 2024. To ensure procedural fairness, an Order was entered giving Lyman an extension until
December 16, 2024, to file his response. (ECF No. 22). This Order advised Lyman that failure
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to comply “shall result in the dismissal of this case.” Id. Lyman failed to respond to the Motion
and a Show Cause Order was entered on December 19, 2024. (ECF No. 23). Lyman was again
advised that failure to respond to the Order subjected the case to dismissal. Lyman’s response
was due by January 9, 2025. Lyman did not respond to the Show Cause Order. To date, Lyman
has not responded to the pending Motion to Dismiss or the Court’s Orders. (ECF Nos. 15, 18, 22,
23).
Lyman has not requested additional time to respond to the Motion or the Courts’ Orders.
No mail has been returned as undeliverable since November 18, 2024, and it was resent the
following day. Lyman has failed to comply with the Court’s Orders. (ECF Nos. 18, 22 & 23).
In each Order, Lyman was advised that failure to respond would result in the dismissal of the case.
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
diligently.
II. CONCLUSION
For these reasons, it is recommended that:
• The Motion to Dismiss filed by Turn Key Health Clinics, LLC (ECF No. 15) be
GRANTED; and
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• Pursuant to Rule 41(b), this case be DISMISSED WITHOUT PREJUDICE based
on Plaintiff’s failure to prosecute this case, his failure to obey the orders of the Court,
and his failure to comply with Local Rule 5.5(c)(2). Fed. R. Civ. P. 41(b).
Status of Referral: The referral terminates upon the filing of this Report and
Recommendation.
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.
RECOMMENDED this 21st day of January 2025.
s/ Christy Comstock
CHRISTY COMSTOCK
UNITED STATES MAGISTRATE JUDGE
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