Mingo v. Florence et al
ORDER Plaintiff's complaint is DISMISSED WITHOUT PREJUDICE. Judgment will be entered accordingly. Signed by Honorable P. K. Holmes, III on May 9, 2017. (mjm)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
Civil No. 2:17-CV-02057-PKH-MEF
OFFICER FLORENCE and NEVADA
Plaintiff, Michael Mingo, submitted this pro se action for filing on March 30, 2017. (Doc.
2). Currently before the Court is Plaintiff’s failure to follow a Court order and failure to prosecute.
Plaintiff filed his complaint on March 30, 2017. (Doc. 2). Plaintiff was directed to file a
completed IFP application or pay the filing fee by May 2, 2017. (Doc. 6). The order advised
Plaintiff that his complaint would be subject to summary dismissal if he failed to complete the IFP
or pay the filing fee by the deadline. This order was not returned as undeliverable. Plaintiff has not
responded. Plaintiff has not communicated with the Court since filing his complaint on March 30,
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
Local Rule 5.5(c)(2)
Additionally, the Federal Rules of Civil Procedure 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 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,” 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)).
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
and Orders and failure to prosecute this case. See Local Rule 5.5(c)(2); Fed. R. Civ. P. 41(b).
For these reasons, Plaintiff’s complaint is DISMISSED WITHOUT PREJUDICE.
Judgment will be entered accordingly.
IT IS SO ORDERED this 9th day of May, 2017.
HON. P. K. HOLMES, III
CHIEF U.S. DISTRICT JUDGE
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