United States District Court, W.D. Arkansas, Texarkana Division
MAGISTRATE JUDGE'S REPORT AND
BARRY A. BRYANT UNITED STATES MAGISTRATE JUDGE.
a civil rights action provisionally filed pursuant to 42
U.S.C. § 1983. Pursuant to the provisions of 28 U.S.C.
§ 636(b)(1) and (3)(2011), the Honorable Susan O.
Hickey, Chief United States District Judge, referred this
case to the undersigned for the purpose of making a Report
before the Court is Plaintiff's failure to obey two Court
Orders and to prosecute this case.
filed his Complaint on May 31, 2019. (ECF No. 1). The
Complaint was provisionally filed, and Plaintiff was directed
to file a completed in forma pauperis application or
pay the filing fee by June 19, 2019. (ECF No. 2). Plaintiff
was also directed to file an Amended Complaint by June 19,
2019. Plaintiff was advised that failure to obey the
Court's Order would result in the dismissal of his case,
without further notice, for failure to obey an Order of the
Court. (Id.). When Plaintiff failed to submit either
document by the deadline, a Report and Recommendation was
entered on July 2, 2019, recommending that Plaintiff's
Complaint be dismissed without prejudice for failure to obey
an Court Order and to prosecute this case. (ECF No. 4).
5, 2019, Plaintiff filed a Motion for Extension to File his
Amended Complaint, stating that he had been in solitary
confinement for sixty days, which had caused him to miss the
deadline. (ECF No. 5). On July 10, 2019, Plaintiff filed a
Motion for Extension of Time to file his objection to the
Report and Recommendation, also stating he had been in
solitary confinement. (ECF No. 6). On July 26, 2019,
Plaintiff filed his Amended Complaint and IFP application.
(ECF No's. 7, 8).
August 12, 2019, Judge Hickey declined to adopt the Report
and Recommendation to dismiss Plaintiff's case based on
his explanation for the delay and his apparent willingness to
prosecute his case. (ECF No. 9).
review, it was discovered that Plaintiff's second IFP
application was deficient because it did not contain the
required inmate certification regarding inmate funds held in
his name. Accordingly, the Court entered an Order directing
Plaintiff to submit a completed IFP application or pay the
filing fee by September 3, 2019. (ECF No. 11). Plaintiff
failed to do so but submitted an address change on September
6, 2019. (ECF No. 12). The Court then entered a second Order
directing Plaintiff to submit a completed IFP application or
pay the filing fee by October 15, 2019. (ECF No. 13). This
Order was mailed to Plaintiff's new address. In both
Orders, Plaintiff was advised that failure to obey the Order
by the deadline would result in the dismissal of his case.
Neither Order was returned as undeliverable. To date,
Plaintiff has failed to obey the Court's Order, and has
not otherwise communicated with the Court.
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 grounds 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).