Philpott v. Sebastian County Detention Center

Filing 6

ORDER; Plaintiff's complaint is DISMISSED WITH PREJUDICE. Judgment will be entered accordingly. Signed by Honorable P. K. Holmes, III on May 9, 2017. (mjm) Modified on 5/9/2017 to edit text (mjm).

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
ROBERT S. PHILPOTT
v.

PLAINTIFF
Civil No. 2:16-CV-02222-PKH-JRM

SEBASTIAN COUNTY DETENTION
CENTER

DEFENDANT

ORDER
Plaintiff, Robert S. Philpott, submitted this pro se action for filing on September 8, 2016.
(Doc. 1). Currently before the Court is Plaintiff’s failure to follow a Court order and failure to
prosecute.
I.

BACKGROUND
Plaintiff filed his complaint on September 8, 2016. (Doc. 1). Plaintiff’s IFP application was

denied on December 7, 2016, pursuant to 28 US.C. § 1915(g). (Doc. 5). Plaintiff was directed to
pay the filing fee by January 6, 2017, or his case would be dismissed with prejudice for failure to
obey a Court order. (Doc. 5) This order was not returned as undeliverable. Plaintiff has not paid
the filing fee. Plaintiff has not communicated with the Court since filing his complaint on September
8, 2016.
II.

LEGAL STANDARD
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

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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 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 possess 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 dely.” 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)).
III.

DISCUSSION
Plaintiff has failed to comply with a Court order. Plaintiff has failed to prosecute this matter.

Accordingly, pursuant to Federal Rule of Civil Procedure 41(b) and Local Rule 5.5(c)(2) Plaintiff’s
Complaint should be dismissed without prejudice for failure to comply with the Court’s Local Rules

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and Orders and failure to prosecute this case. See Local Rule 5.5(c)(2); Fed. R. Civ. P. 41(b).
IV.

CONCLUSION
For these reasons, Plaintiff’s complaint is DISMISSED WITH PREJUDICE.

Judgment will be entered accordingly.
IT IS SO ORDERED this 9th day of May, 2017.

/s/P.K.Holmes, III
HON. P. K. HOLMES, III
CHIEF U.S. DISTRICT JUDGE

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