Ward et al v. Payne et al

Filing 23

OPINION, MEMORANDUM AND ORDER IT IS HEREBY ORDERED that this action is DISMISSED without prejudice for failure to comply with the Courts order of October 29, 2020. See Fed. R. Civ. P. 41(b). A separate order of dismissal will be entered herewith.IT IS FURTHER ORDERED that an appeal from this dismissal would not be taken in good faith. Signed by District Judge Henry Edward Autrey on January 7, 2021. (MCB)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KEVIN WARD, et al.,

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Plaintiffs,
v.
STANLEY PAYNE, et al.,
Defendants.

No. 4:20-cv-01093-SPM

OPINION, MEMORANDUM AND ORDER
This matter comes before the Court on its own motion. On October 29, 2020, the Court
ordered plaintiff to file an amended complaint within forty-five days. (Docket No. 17). Plaintiff
has failed to comply. Therefore, for the reasons discussed below, this action will be dismissed
without prejudice. See Fed. R. Civ. P. 41(b).
Background
Plaintiff is a self-represented litigant who is currently incarcerated at the Eastern Reception,
Diagnostic and Correctional Center in Bonne Terre, Missouri. On August 18, 2020, plaintiff, along
with a second inmate, filed a joint civil action pursuant to 42 U.S.C. § 1983. (Docket No. 1).
Plaintiff also submitted a motion for leave to proceed in forma pauperis. (Docket No. 3).
On August 24, 2020, the Court directed the Clerk of Court to strike the second inmate from
this action, and to open a separate case for him. (Docket No. 6). Thereafter, on September 11,
2020, the Court granted plaintiff’s motion for leave to proceed in forma pauperis. (Docket No. 10).
Because plaintiff was proceeding in forma pauperis, the Court also reviewed his complaint
pursuant to 28 U.S.C. § 1915. Following that review, the Court ordered plaintiff to file an amended

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complaint on a Court-form that contained only his allegations, and not allegations concerning the
second inmate. He was given thirty days in which to comply.
Plaintiff filed a motion for an extension of time to submit his amended complaint on
October 8, 2020. (Docket No. 14). The motion was granted, and plaintiff was given an additional
thirty days to file an amended complaint. (Docket No. 15). Subsequently, plaintiff filed a motion
to stay proceedings until a later date. (Docket No. 16). On October 29, 2020, the Court denied
plaintiff’s request to stay proceedings, but gave him forty-five days from the date of the order in
which to file his previously-ordered amended complaint. (Docket No. 17). The amended complaint
was due on or before December 14, 2020.1 Plaintiff was advised that failure to comply with the
Court’s order would result in the dismissal of his case without prejudice and without further notice.
Discussion
As noted above, on October 29, 2020, the Court ordered plaintiff to file an amended
complaint within forty-five days. The amended complaint was due on or before December 14,
2020. In the order, plaintiff was advised that failure to comply with the Court’s order would result
in the dismissal of this action without prejudice and without further notice.
The deadline for plaintiff to file his amended complaint has expired. In fact, the Court has
given plaintiff more than forty-five days in which to respond. Nonetheless, plaintiff has failed to
submit an amended complaint as directed. He has also failed to file a motion with the Court seeking
an extension of time in which to comply.
Under Rule 41(b), an action may be dismissed for failure to comply with a court order. See
Fed. R. Civ. P. 41(b). See also Brown v. Frey, 806 F.2d 801, 803 (8th Cir. 1986) (stating that district

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Forty-five days from October 29, 2020 was Sunday, December 13, 2020. However, when the last day of the period
is a “Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday,
Sunday, or legal holiday.” Fed. R. Civ. P. 6(a)(1)(C). Therefore, the forty-five day period ended on Monday, December
14, 2020.

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court may dismiss a pro se litigant’s action for failure to comply with a court order on its own
initiative). Because plaintiff has not complied with the Court’s order of October 29, 2020, or filed
any type of motion seeking an extension of time in which to comply, the Court will dismiss this
action without prejudice.
Accordingly,
IT IS HEREBY ORDERED that this action is DISMISSED without prejudice for failure
to comply with the Court’s order of October 29, 2020. See Fed. R. Civ. P. 41(b). A separate order
of dismissal will be entered herewith.
IT IS FURTHER ORDERED that an appeal from this dismissal would not be taken in
good faith.
Dated this 7th day of January, 2021.

HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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