Baker v. Hollenbeck et al

Filing 6

ORDER re 1 Complaint Referred (42:1983) filed by Jimmy Baker, Jr., this case is DISMISSED WITHOUT PREJUDICE. Signed by Honorable P. K. Holmes, III on August 29, 2017. (hnc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
JIMMY BAKER, JR.
v.

PLAINTIFF
Civil No. 2:17-cv-02113

SHERIFF BILL HOLLENBECK;
CAPTAIN JOHN MILLER; CINDY MOOR;
and SERGEANT WILLIAM DUMAS

DEFENDANTS

ORDER
This is a civil rights case filed by the Plaintiff, Jimmy Baker, Jr., under the provisions of 42
U.S.C. § 1983 on July 7, 2017. Plaintiff proceeds pro se.
I.

BACKGROUND
With his complaint, Plaintiff submitted an in forma pauperis (IFP) application, however, he

failed to sign his IFP application. (Doc. 2, p. 2). By order entered on July 7, 2017, Plaintiff was
directed to submit a completed IFP application, including signature, by July 24, 2017. (Doc. 3).
The order stated that Plaintiff’s failure to return the completed IFP application or pay the $400 filing
fee by July 24, 2017, would subject the complaint to summary dismissal for failure to obey an order
of the Court. This order (Doc. 3) was not returned as undeliverable.
Plaintiff did not file the completed IFP application or pay the $400 filing fee. He did not
seek an extension of time to do so. Plaintiff has not communicated with the Court since July 7,
2017.
II.

LEGAL STANDARD
While pro se pleadings are to be construed liberally, a pro se litigant is not excused from

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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
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 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)).
III.

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

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Accordingly, 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).
IV.

CONCLUSION
For these reasons, Plaintiff’s complaint is DISMISSED WITHOUT PREJUDICE.
IT IS SO ORDERED this 29th day of August, 2017.

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

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