Counts v. Sanders et al
ORDER granting 16 MOTION to Dismiss with Brief Incorporated filed by Michelle Reeves, Larry Sanders, Ronald Braindstetter, Mark Chamberlain. Signed by Honorable P. K. Holmes, III on May 23, 2017. (hnc)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
LEE O. COUNTS
Civil No. 6:16-CV-06024-PKH-BAB
SHERIFF LARRY SANDERS, et. al.
Plaintiff, Lee O. Counts, submitted this pro se action for filing on March 10, 2016. (Doc.
1). Currently before the Court is Defendant motion to dismiss (Doc. 16), and Plaintiff’s failure to
follow a Court order and failure to prosecute.
Plaintiff filed his complaint on March 10, 2016. (Doc. 1). On January 12, 2017, Defendants
filed a motion to compel, stating their discovery requests to Plaintiff had not been returned as
undeliverable, and Plaintiff had not responded. (Doc. 14). On January 13, 2017, the Court entered
an order directing Plaintiff to provide Defendant with the required discovery responses by February
3, 2017. Plaintiff was advised that failure to comply with the order could result in summary
dismissal of his case. (Doc. 15). This order was not returned as undeliverable.
Defendants filed their motion to dismiss on February 28, 2017, stating that Plaintiff had not
responded. (Doc. 16). Plaintiff has not communicated with the Court since filing his complaint.
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 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)).
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 23rd day of May, 2017.
HON. P. K. HOLMES, III
CHIEF U.S. DISTRICT JUDGE
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