Spear v. Burton

Filing 7

ORDER dismissing Plaintiff's 1 Complaint without prejudice for failure to pay the filing fee, failure to comply with Local Rule 5.5(c)(2), and for failure to respond to the Court's order. The Court certifies that an in forma pauperis appeal taken from the order and judgment dismissing this action is considered frivolous and not in good faith. Signed by Judge Susan Webber Wright on 03/29/2013. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
MICHAEL PATRICK SPEAR, SR.
V.

PLAINTIFF

NO: 3:13CV00006 SWW

DENNIS BURTON

DEFENDANT
ORDER

Plaintiff filed this pro se complaint, pursuant to 42 U.S.C. § 1983, on January 9, 2013.
Plaintiff did not pay the $350.00 filing fee, or file an application for leave to proceed in forma
pauperis. Accordingly, on January 16, 2013, Plaintiff was ordered to pay the filing fee, or to file
an application for leave to proceed in forma pauperis, within 30 days (docket entry #2). That same
order also warned Plaintiff that his failure to do so would result in the dismissal of his complaint.
Because that order, and other mail sent to Plaintiff at the Sharp County Detention Center was
returned with a notation that he was no longer here, the Court, on February 21, 2013, entered another
order directing Plaintiff to pay the filing fee or to file an application for leave to proceed in forma
pauperis, and warning him that his failure to do so within 30 days would result in the dismissal of
his complaint (docket entry #6). That order was sent not only to Plaintiff’s address of record, but
also to a private address he had included in his original complaint.
More than 30 days have passed, and Plaintiff has not paid the filing fee, filed an application
for leave to proceed in forma pauperis, or otherwise responded to the order. Under these
circumstances, the Court concludes that Plaintiff’s complaint should be dismissed without prejudice
for failure to pay the filing fee, failure to comply with Local Rule 5.5(c)(2), and for failure to
respond to the Court’s order. See Miller v. Benson, 51 F.3d 166, 168 (8th Cir. 1995) (District courts

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have inherent power to dismiss sua sponte a case for failure to prosecute, and exercise of that power
is reviewed for abuse of discretion).
IT IS THEREFORE ORDERED THAT:
1.

Plaintiff’s complaint is DISMISSED WITHOUT PREJUDICE for failure to pay the

filing fee, failure to comply with Local Rule 5.5(c)(2), and for failure to respond to the Court’s
order.
2.

The Court certifies that an in forma pauperis appeal taken from the order and

judgment dismissing this action is considered frivolous and not in good faith.
DATED this 29th day of March, 2013.

/s/Susan Webber Wright
UNITED STATES DISTRICT JUDGE

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