United States District Court, W.D. Arkansas, Texarkana Division
O. Hickey United States District Judge
instant matter is a civil rights action filed by Plaintiff
Cortez Lamons Lockett, pursuant to 42 U.S.C. § 1983.
Before the Court are two motions to dismiss filed by
Defendants. (ECF No. 13, 18).
filed his Complaint on January 10, 2018, proceeding pro
se and in forma pauperis. (ECF No. 1).
Plaintiff's Complaint asserts that his constitutional
rights were violated when he was incarcerated in the Miller
County Jail. The Court will address each of the motions to
dismiss in turn.
FIRST MOTION TO DISMISS
Defendant Sgt. Chance Patterson (“Sgt.
Patterson”) filed the first Motion to Dismiss on
February 14, 2018. (ECF No. 13). The first Motion to Dismiss
was based on Plaintiff's failure to include Sgt.
Patterson in any of his factual allegations in the Complaint.
On February 14, 2018, the Court entered a text-only order
directing Plaintiff to respond to the first Motion to Dismiss
by March 7, 2018. (ECF No. 16). Plaintiff was advised
“that failure to timely and properly comply with this
Order shall result in the dismissal of this action, without
prejudice, pursuant to Local Rule 5.5(c)(2).” As of the
date of this Order, Plaintiff has not responded to the first
Motion to Dismiss or attempted to allege any facts connecting
Sgt. Patterson to the alleged constitutional violations.
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). The Local Rules state 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
Local Rule 5.5(c)(2).
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 orders of the court.
Fed.R.Civ.P. 41(b); Link 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).
has failed to comply with a Court order directing him to
respond to the first Motion to Dismiss. Plaintiff has failed
to prosecute this matter. Accordingly, the Court finds that
the first Motion to Dismiss, filed by Sgt. Patterson, should
be granted. Pursuant to Federal Rule of Civil Procedure 41(b)
and Local Rule 5.5(c)(2), Plaintiff's claims against Sgt.
Patterson should be dismissed without prejudice.
SECOND MOTION TO DISMISS
second Motion to Dismiss was filed on behalf of all
Defendants on March 14, 2018. (ECF No. 18). The
second Motion to Dismiss cites Federal Rule of Civil
Procedure 41(b) and asserts that Plaintiff failed to respond
to the Court's text-only order concerning the first
Motion to Dismiss (ECF No. 16). The second Motion to Dismiss
also argues that Plaintiff has failed to prosecute this
Court directed Plaintiff to respond to the second Motion to
Dismiss by April 5, 2018. (ECF No. 20).
prepared a Response to the second Motion to Dismiss, dated
March 30, 2018, in which he indicates that he wishes to
continue pursuing the case. (ECF No. 21). Plaintiff mailed
the Response to Defense counsel, rather than filing it with
the Court. Defense counsel received the Response on April 5,
2018, and forwarded the Response to the Court. The Court
received the forwarded Response on April 11, 2018, and filed
it on the record that day. Under the prison mailbox rule, the
Court will deem Plaintiff's Response timely if it was
placed in the prison mail system by the deadline for filing.
Bunch v. Riley, No. 5:06-cv-5220-JLH, 2008 WL
4278174, at *1 (W.D. Ark. Sept. 18, 2008). As stated above,
Plaintiff's Response is dated March 30, 2018.
Accordingly, Plaintiff's Response to the second Motion to
Dismiss was timely filed and, in light of the fact that
Plaintiff indicates ...