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Roddy v. Kelley

United States District Court, W.D. Arkansas, Hot Springs Division

October 5, 2017

TROY RODDY PLAINTIFF
v.
WENDY KELLEY, et al. DEFENDANTS

          ORDER

          Susan O. Hickey United States District Judge.

         Plaintiff Troy Roddy submitted this pro se action for filing on June 2, 2017. (ECF No. 1). Currently before the Court is Plaintiff's failure to follow a court order, failure to prosecute, and failure to exhaust his administrative remedies.

         I. BACKGROUND

         Plaintiff filed his Complaint on June 2, 2017. (ECF No. 1). On July 14, 2017, the Court entered an order directing Plaintiff to file a completed in forma pauperis (“IFP”) application or pay the filing fee and to submit his Complaint on the court-approved form by July 28, 2017. (ECF No. 8). In the order, Plaintiff was advised that his case would be subject to dismissal if he failed to comply with the order. (ECF No. 8). Plaintiff submitted a completed IFP application (ECF No. 11) on July 24, 2017, but did not submit his Complaint as directed by the Court. Instead, Plaintiff filed a Motion for Appointment of Counsel, stating medication affected his mobility and the use of his hands.[1] (ECF Nos. 10, 10-1).

         II. DISCUSSION

         Upon review, the Court finds that this matter should be dismissed for failure to comply with the Court's previous order, failure to prosecute, and failure to exhaust administrative remedies.

         As an initial matter, the Court notes that Plaintiff is a Prison Litigation Reform Act (“PLRA”) three-striker pursuant to 28 U.S.C. § 1915(g) and is therefore barred from proceeding in forma pauperis unless his claims fall within the exception to the three-strike rule. See Roddy v. Holloway, Case No. 2:11-CV-00004-JLH-JJV (E.D. Ark. 2011) (noting five prior cases qualifying as strikes). 28 U.S.C. § 1915(g) provides:

In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.

         Plaintiff's original Complaint provides a litany of allegations against Defendants, but the only allegation that could permit an exception to the three-strike rule states that Plaintiff was in “imminent danger” of serious physical injury due to an unspecified “forced treatment.” (ECF No. 1, p. 1) (emphasis in original). Plaintiff was ordered to file his Complaint on the court-approved complaint form by July 28, 2017, so that the Court could determine if he qualified for an exception to the three-strike rule. Plaintiff did not do so.

         A. Failure to Comply with a Court Order and Failure to Prosecute

         While 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 pertinent part:

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 Procedure.

         Local Rule 5.5(c)(2).

         Additionally, the Federal Rules of Civil Procedure specifically contemplate dismissal of a case 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.” Brown ...


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