McKinney v. Plyler, et al

Filing 7

ORDER re 2 Complaint filed by John Ross McKinney and case is dismissed without prejudice for failure to comply. Signed by Honorable Susan O. Hickey on March 1, 2016. (rw) Modified on 3/1/2016 to edit text (rw).

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION

JOHN ROSS MCKINNEY
v.

PLAINTIFF
Case No. 6:15-cv-06072

ROBBIE PLYLER, et al.

DEFENDANTS

ORDER
On July 13, 2015, Plaintiff, John Ross McKinney, submitted this pro se action for filing
in the Eastern District of Arkansas. ECF No. 2. The case was properly transferred to this District
on July 16, 2015. ECF No. 3. Currently before the Court are Plaintiff's failure to follow a court
order and failure to prosecute.
Plaintiff filed his complaint on July 13, 2015. ECF No. 2. On September 25, 2015, Plaintiff
was directed to file a completed in forma pauperis (“IFP”) application by October 9, 2015. ECF No.
5. The Order was not returned as undeliverable. Plaintiff did not respond.
On January 29, 2016, the Court entered a Show Cause Order directing Plaintiff to show cause
why his case should not be dismissed for failure to follow the rules of the Court. Plaintiff was
directed to respond by February 12, 2016. ECF No. 6. The Order was not returned as undeliverable.
Plaintiff did not respond to the Show Cause Order. Plaintiff has not communicated with the Court
since he filed his complaint on July 13, 2015.
While pro se pleadings are to be construed liberally, a pro se litigant is not excused from
complying with substantive and procedural law. See 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 specifically contemplate dismissal of a
case on the grounds that the plaintiff failed to prosecute or failed to comply with orders of the Court.
See Fed. R. Civ. P. 41(b); see also 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.” 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)).
Plaintiff has failed to comply with the Court’s Order to Show Cause. Plaintiff has also
failed to prosecute this matter. Accordingly, pursuant to Federal Rule of Civil Procedure 41(b) and
Local Rule 5.5(c)(2), the Court finds that this case should be and hereby is 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).
IT IS SO ORDERED this 1st day of March, 2016.

/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge

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