United States v. James Boesen, Jr.

1The Honorable Jimm Larry Hendren, Chief Judge, United States District Court
for the Western District of Arkansas, adopting the report and recommendations of the
Honorable Barry A. Bryant, United States Magistrate Judge for the Western District
of Arkansas.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-2733
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Damond Thompson, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Western District of Arkansas.
Captain Melvin Steed, *
* [UNPUBLISHED]
Appellee. *
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Submitted: March 24, 2010
Filed: March 29, 2010
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Before WOLLMAN, COLLOTON, and GRUENDER, Circuit Judges.
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PER CURIAM.
Damond Thompson appeals the district court’s1 dismissal of his action without
prejudice for failure to prosecute. The dismissal occurred after Thompson failed to
comply with an April 6 order directing him to submit a witness and exhibit list for his
scheduled evidentiary hearing. Thompson argues on appeal that dismissal was
erroneous because he did not receive the April 6 order, he had given written notice to

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the court that he was having trouble sending and receiving mail at his new address,
and he had not previously failed to respond to any court orders.
We hold that the district court did not clearly err in finding that it was unlikely
that Thompson did not receive the order, see Anderson v. City of Bessemer City, 470
U.S. 564, 573 (1985) (clear-error standard), and thus the court did not abuse its
discretion in dismissing the action without prejudice under Federal Rule of Civil
Procedure 41(b). See Smith v. Gold Dust Casino, 526 F.3d 402, 404-05 (8th Cir.
2008) (standard of review for dismissal for failure to prosecute). The order warned
Thompson that his action could be dismissed if he did not file his witness and exhibit
list by a certain date and that no further continuances of the evidentiary hearing would
be granted absent an extraordinary showing of good cause. See First Gen. Res. Co.
v. Elton Leather Corp., 958 F.2d 204, 206 (8th Cir. 1992) (per curiam) (upholding
dismissal under Rule 41(b) in part because district court “expressly warned”
appellants that case could be dismissed); Farnsworth v. Kansas City, Mo., 863 F.2d
33, 34 (8th Cir. 1988) (per curiam) (pro se litigants are not excused from complying
with court orders).
Accordingly, the judgment is affirmed.
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