Eagle Bull v. United States of America
ORDER dismissing 1 Complaint and denying as moot 8 Motion to Dismiss for Lack of Jurisdiction. Signed by Chief Judge Jeffrey L. Viken on 10/16/17. (SB)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
LAWRENCE EAGLE BULL,
UNITED STATES OF AMERICA,
Plaintiff Lawrence Eagle Bull filed a complaint pursuant to the Federal Tort
Claims Act, 28 U.S.C. § 2671 et. seq. (Docket 1). On July 12, 2017, the
government filed a motion to dismiss, together with a brief and affidavit.
(Dockets 8-10). On September 11, 2017, the court issued an order to Mr. Eagle
Bull directing him to file a responsive brief by October 2, 2017.1 (Docket 13 at
p. 2). The order cautioned Mr. Eagle Bull that his “[f]ailure to comply with this
order may result in the dismissal of the complaint with prejudice and without
further notice.” Id. at p. 2. As of the date of this order, plaintiff has not filed his
brief or sought a further extension of time to do so.
Plaintiff’s pro se status does not entitle him to disregard the Federal Rules
of Civil Procedure. Bennett, 295 F.3d at 808. Pro se litigants also must comply
The court has no duty to advise plaintiff of his obligation to respond to
motions and the procedure for doing so. See Bennett v. Dr. Pepper/Seven Up,
Inc., 295 F.3d 805, 808 (8th Cir. 2002) (finding the court did not have an
affirmative duty to advise a pro se litigant of the date by which he was to respond
to a motion); Beck v. Skon, 253 F.3d 330, 333 (8th Cir. 2001) (finding the district
court was not required to instruct a pro se litigant on how to properly respond to
with court rules and directives. Soliman v. Johanns, 412 F.3d 920, 922 (8th
Cir. 2005). However, plaintiff’s failure to respond to defendants’ motions to
dismiss “does not automatically compel resolution of [the motions] in favor of
[defendants].” United States v. One Parcel of Real Prop., 27 F.3d 327, 329 n.1
(8th Cir. 1994); see also Canada v. Union Elec. Co., 135 F.3d 1211, 1213 (8th
Cir. 1997) (“When a motion would be dispositive of the merits of the cause if
granted, courts should normally not treat a failure to respond to the motion as
conclusive.”); Soliman, 412 F.3d at 922 (determining whether summary
judgment was appropriate on the merits despite a plaintiff’s failure to respond to
a defendant’s summary judgment motion).
The court need not reach the merits of defendant’s motion and declines to
do so. Unlike the majority of cases where the district court resolved a motion on
the merits despite a plaintiff’s failure to respond, here, the court advised plaintiff
of his obligation to respond and ordered him to show cause. Thus, the court
finds plaintiff’s nonresponsiveness particularly egregious.
“A district court has discretion to dismiss an action under [Fed. R. Civ. P.
41(b)] for a plaintiff’s failure to prosecute, or to comply with Federal Rules of Civil
Procedure or any court order.” Henderson v. Renaissance Grand Hotel,
267 Fed. Appx. 496, 2008 WL 540172 at *1 (8th Cir. 2008); see also Link v.
Wabash R.R. Co., 370 U.S. 626, 630-33 (1962) (finding a district court may
dismiss an action under Rule 41(b) on its own initiative and “without affording
notice of its intention to do so or providing an adversary hearing before acting[,]”
and recognizing a district court has the inherent authority to “manage [its] own
affairs so as to achieve the orderly and expeditious disposition of cases”). The
court finds dismissal of plaintiff’s complaint is appropriate given his disregard of
the rules and the court’s show cause order.
The court next must determine whether the dismissal of plaintiff’s
complaint should be with or without prejudice. “Dismissal with prejudice is an
extreme sanction and should be used in cases of willful disobedience of a court
order or continued persistent failure to prosecute a complaint.” Givens v. A.H.
Robins Co., Inc., 751 F.2d 261, 263 (8th Cir. 1984). Based on the procedural
history of this case and plaintiff’s failure to respond to the court’s show cause
order, the court finds it appropriate to dismiss the complaint with prejudice.
Accordingly, pursuant to Rule 41(b) and the court’s inherent authority, it
ORDERED that plaintiff’s complaint (Docket 1) is dismissed with
IT IS FURTHER ORDERED that defendant’s motion to dismiss (Docket 8)
is denied as moot.
Dated October 16, 2017.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
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