United States District Court, W.D. Arkansas, Hot Springs Division
MAGISTRATE JUDGE'S REPORT AND
E. FORD, Magistrate Judge.
a civil rights action filed by Plaintiff, James Goodin,
pursuant to 42 U.S.C. Â§ 1983. Pursuant to the provisions of
28 U.S.C. Â§ 636(b)(1) and (3)(2011), the Hon. Susan O.
Hickey, United States District Judge for the Western District
of Arkansas, referred this case to the undersigned for the
purpose of making a report and recommendation.
before the Court is Plaintiff's failure to comply with a
Court Order and Plaintiff's failure to prosecute this
matter. After careful consideration, the Court makes the
following Report and Recommendation.
November 18, 2015, the Court entered a Scheduling Order
setting the summary judgment hearing in this case on
Thursday, March 31, 2016, at 1:00 p.m. (Doc. 45) This order
was not returned as undeliverable. Plaintiff communicated
with the Court on December 28, 2015, notifying the Court of a
change of address. (Doc. 49)
March 31, 2016, the Court and counsel for Defendants were
present for the summary judgment hearing. At 1:20 p.m,
Plaintiff had not yet appeared, and the hearing was
March 31, 2016, the Court entered an Order to Show Cause,
giving Plaintiff until April 15, 2016, to show cause why he
failed to obey the Order of the Court. Plaintiff was advised
his case would be subject to dismissal if he did not respond
by April 15, 2016. Plaintiff did not respond.
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). Local Rule 5.5(c)(2) states in
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
the Federal Rules of Civil Procedure also specifically
contemplate dismissal of a case with prejudice on the grounds
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) (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, " and such a dismissal may be with prejudice if
there has been "a clear record of delay or contumacious
conduct by the plaintiff.'" Brown v. Frey,
806 F.2d 801, 803-04 (8th Cir. 1986) (quoting Haley v.
Kansas City Star, 761 F.2d 489, 491 (8th Cir. 1985))
(emphasis added). Dismissal with prejudice is an extreme
sanction, and only to be used in cases of "willful
disobedience of a court order" or "where a litigant
exhibits a pattern of intentional delay." Hunt v.
City of Minneapolis, 203 F.3d 524, 527 (8th Cir. 2000).
The Court does not, however, need to find that Plaintiff
acted in bad faith, but "only that he acted
intentionally as opposed to accidentally or
involuntarily." Id. (quoting Rodgers v.
Univ. of Missouri, 135 F.3d 1216, 1219 (8th Cir. 1998)).
has failed to comply with two Court orders. Plaintiff has
failed to prosecute this matter. Accordingly, pursuant to
Federal Rule of Civil Procedure 41(b) and Local Rule
5.5(c)(2), the Court recommends that Plaintiff's
Complaint be dismissed with prejudice for failure to comply
with the Court's Local Rules and ...