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
ANDRES ORTEGA DIAZ PLAINTIFF
v. Civil No. 5:25-cv-05020-TLB-CDC
SHERIFF JAY CANTRELL, Washington
County, Arkansas; and JOHN DOE
MEDICAL CARE PROVIDER, Benton
County Detention Center DEFENDANTS
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
This is a civil rights action filed by the Plaintiff pursuant to 42 U.S.C. § 1983. Plaintiff
proceeds pro se. 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 Plaintiff’s
failure to obey the Court’s Orders.
I. DISCUSSION
Plaintiff filed this case on February 6, 2025. (ECF No. 1). The Plaintiff had failed to file
an application to proceed in forma pauperis (“IFP”). He was ordered to submit a motion to
proceed IFP or pay the filing fee by February 27, 2025. (ECF No. 2). He was advised that failure
to comply would result in the dismissal of the case. Id. Additionally, in the same Order, Plaintiff
was directed to submit an Amended Complaint by February 27, 2025. Id. He was advised that
the case shall be subject to dismissal if he did not comply. Id.
Plaintiff failed to submit his motion to proceed IFP or pay the filing fee. As a matter of
procedural fairness and to give Plaintiff yet another opportunity to comply with the Court’s Order,
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a Show Cause Order was entered on February 27, 2025. (ECF No. 5). Plaintiff was given until
March 20, 2025, to respond to the Show Cause Order. Id.
Plaintiff also failed to return the signed consent/request for reassignment form. (ECF No.
3). A second notice regarding the form was sent giving Plaintiff until March 20, 2025, to submit
the signed form. (ECF No. 6).
Finally, Plaintiff failed to file his Amended Complaint. For this reason, a Show Cause
Order was entered. (ECF No. 7). Plaintiff was given until March 20, 2025, to respond to the
Show Cause Order. Id.
On March 11, 2025, mail sent to the Plaintiff was returned as undeliverable. (ECF No. 8).
The mail was resent to a home address. Id. On March 21, 2025, the Court received Plaintiff’s
signed form requesting reassignment of the case to a District Judge. The case was reassigned.
On March 27, 2025, the mail resent to the Plaintiff’s home address was again returned as
undeliverable with a notation: Insufficient address—unable to forward. Plaintiff did not file his
Amended Complaint or his application to proceed IFP. He has not paid the filing fee.
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.
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II. CONCLUSION
For these reasons, pursuant to Rule 41(b), it is recommended that 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).
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.
Status of Referral: The referral terminates upon the filing of this Report and
Recommendation.
RECOMMENDED this 14th day of April 2025.
s/ Christy Comstock
CHRISTY COMSTOCK
UNITED STATES MAGISTRATE JUDGE
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