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
JONATHAN MICHEAL VANCE PLAINTIFF
v. Civil No. 5:25-cv-05039-BAB
SHERIFF SHAWN HOLLOWAY, Benton
County, Arkansas; CHIEF DEPUTY MEYER
GILBERT (Badge #2), Benton County Detention
Center (BCDC); MAJOR ROBERT BERSI (Badge
#3), BCDC; CAPTAIN HAROLD GAGE (Badge #5),
BCDC; LIEUTENANT BRITTANY WRIGHT
(Badge #13), BCDC; SERGEANT JEREMY
FERGUSON (Badge #500), BCDC; CORPORAL
DANIEL SKOURUP (Badge #501), BCDC; DEPUTY
KEVIN GARRETT (Badge #509), BCDC; and
DEPUTY DENNIS WIKE (Badge #504), BCDC 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 and in forma pauperis (“IFP”).
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 Plaintiff’s
claims require dismissal, the Court enters its findings 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.
I. DISCUSSION
When Plaintiff initiated this action, he was incarcerated in the Benton County Detention
Center (“BCDC”). (ECF No. 1 at 1). Plaintiff was directed to submit an Amended Complaint
by March 18, 2025. (ECF No. 3). Plaintiff was informed the case was subject to dismissal if
he failed to comply with the Order. Id.
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On February 26, 2025, Plaintiff sent an e-mail notifying the Court of his change of address
to Mammoth Springs, Arkansas. All returned mail from the BCDC was resent to the new address.
(ECF No. 6).
On March 21, 2025, Plaintiff telephoned the Clerk’s Office inquiring about the blank
complaint form previously mailed to him. He indicated he had not received it. Clerk’s Office
staff confirmed the address on the docket sheet was correct and resent a blank prisoner complaint
form and IFP application to Plaintiff.
On March 24, 2025, a Show Cause Order was entered when Plaintiff failed to file his
Amended Complaint by March 18th. (ECF No. 8). Plaintiff’s response was due by April 14,
2025. Id. Plaintiff was advised that failure to comply with the Show Cause Order “shall” subject
the case to dismissal. Id.
On March 28, 2025, Plaintiff changed his address to Thayer, Missouri. (ECF No. 9). He
also filed a Motion for an Extension of time to file his Amended Complaint. (ECF No. 10). That
same day, Plaintiff’s motion for an extension of time to file his Amended Complaint was granted.
(ECF No. 11). Plaintiff was given an extension of time until April 18, 2025, to submit his
Amended Complaint. Id. Plaintiff was also advised he did not have to respond to the Show
Cause Order entered on March 24, 2025. Id.
Additionally, on March 28, 2025, in accordance with the Court’s customary practice,
Plaintiff was directed to either pay the balance of the filing fee or complete a new IFP application
to confirm he was still entitled to proceed IFP under his free world financial status. (ECF No. 7).
The filing fee or IFP application was due by April 18, 2025. Id. Plaintiff was advised the case
“shall be subject to dismissal” if he did not either pay the filing fee or resubmit the IFP application.
Id.
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On April 25, 2025, when Plaintiff had failed to submit his Amended Complaint, pay the
filing fee, or submit his IFP application by April 18th, to ensure procedural fairness and to give
Plaintiff one more opportunity to comply with the Court’s Orders, a Show Cause Order was
entered. (ECF No. 13). Plaintiff’s response was due by May 16, 2025. Id. Plaintiff was
advised that failure to respond by the deadline “shall” subject the case to dismissal. Id.
Plaintiff has not requested additional time to respond to the Courts’ Orders. No mail has
been returned as undeliverable. Plaintiff has failed to comply with the Court’s Orders. (ECF Nos.
11, 12 & 13). In each Order, Plaintiff 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 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.
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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.
DATED this 22nd day of May 2025.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE
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