Atterberry v. Wallen et al

Filing 9

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that this case is DISMISSED without prejudice. A separate order of dismissal will be entered herewith. IT IS HEREBY CERTIFIED than an appeal from this dismissal would not be taken in good faith. Signed by District Judge Catherine D. Perry on August 3, 2017. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JAMES ATTERBERRY,
Plaintiff,
v.
AMY WALLEN, et al.,
Defendants.

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No. 4:17-cv-884-NCC

MEMORANDUM AND ORDER
This matter is before the Court upon review of the file. On March 13, 2017, plaintiff
filed a civil complaint in this Court pursuant to 42 U.S.C. § 1983, and filed a motion for leave to
proceed in forma pauperis. However, he failed to submit a certified inmate account statement,
and on March 27, 2017 the Court ordered him to do so. When plaintiff did not timely comply
with that order, the Court sua sponte gave him a fourteen-day extension of time. Plaintiff
submitted the required information, and this Court granted his motion for leave to proceed in
forma pauperis and conducted initial review of his complaint pursuant to 28 U.S.C. § 1915(e).
Upon such review, the Court determined that the complaint failed to state a claim upon which
relief could be granted. In an order dated June 13, 2017, the Court gave plaintiff an opportunity
to submit an amended complaint, and also directed him to submit an initial partial filing fee of
$13.20. The Court cautioned plaintiff that his failure to timely comply would result in the
dismissal of his case without further notice. His response to the Court was due on July 5, 2017.
To date, plaintiff has neither complied with the Court’s order nor sought additional time
to do so. Plaintiff was given meaningful notice of what was expected, and cautioned that his
case would be dismissed if he failed to timely comply with the Court’s order. Therefore, this

action will be dismissed without prejudice due to plaintiff’s failure to prosecute his case and his
failure to comply with this Court’s June 13, 2017 order. Fed. R. Civ. P. 41(b); see also Dudley v.
Miles, 597 F. App’x 392 (8th Cir. 2015) (per curiam) (affirming dismissal without prejudice
where pro se plaintiff failed to file an amended complaint despite being cautioned that dismissal
could result from failure to do so); Fitzwater v. Ray, 352 F. App’x 125, 126 (8th Cir. 2009) (per
curiam) (district court did not abuse its discretion in dismissing action without prejudice when
the pro se plaintiffs failed to comply with an order “directing them to file within fourteen days an
amended complaint in conformity with Rule 8”); Brown v. Frey, 806 F.2d 801, 803-04 (8th Cir.
1986) (a district court has the power to dismiss an action for the plaintiff’s failure to comply with
any court order).
Accordingly,
IT IS HEREBY ORDERED that this case is DISMISSED without prejudice.

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separate order of dismissal will be entered herewith.
IT IS HEREBY CERTIFIED than an appeal from this dismissal would not be taken in
good faith.
Dated this 3rd day of day of August, 2017.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

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