United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 05-2882

___________

Elliott Holly, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* District of Minnesota.

Amy Anderson; Deborah Konieska; *

Tony Kaufenberg; Mike Smith; * [PUBLISHED]

Sandi Davis, *

*

Appellees. *

___________

Submitted: October 27, 2006

Filed: November 2, 2006

___________

Before MURPHY, BYE, and MELLOY, Circuit Judges.

___________

PER CURIAM.

Elliott Holly appeals the district court’s order dismissing his 42 U.S.C. § 1983

action prior to service for failure to comply with a court order. We reverse. 

While civilly confined in a Minnesota sex-offender treatment program, Holly

filed an application to proceed in forma pauperis (IFP) and a complaint against

treatment center employees for alleged civil rights violations. A magistrate judge

granted Holly IFP status, and ordered the court clerk to issue summons and the United

States Marshall to serve a copy of the summons and complaint upon defendants,
-2-

noting that all costs of service would be advanced by the United States. Holly

thereafter sought to file an amended complaint, which the magistrate judge struck on

June 28, 2004, for failure to comply with a local rule. In this June 28 order, the

magistrate judge afforded Holly until July 23, 2004, to file another amended

complaint (if he wished to do so); ordered Holly to submit one additional copy of his

complaint (original or amended) for each defendant he named; and warned Holly that

failure to comply could result in dismissal. On July 27, 2004, Holly informed the

court that he had been moved from the treatment center to prison and did not have his

legal materials with him. About six weeks later, because Holly had not submitted any

extra copies of his complaint, the district court dismissed the action without prejudice

under Federal Rule of Civil Procedure 41(b). 

A district court may sua sponte dismiss an action under Rule 41(b) for the

plaintiff’s deliberate failure to comply with a court order. See Hutchins v. A.G.

Edwards & Sons, Inc., 116 F.3d 1256, 1259-60 (8th Cir. 1997); Brown v. Frey, 806

F.2d 801, 803 (8th Cir. 1986). We conclude that the district court abused its

discretion in dismissing this action, see Rodgers v. Curators of Univ. of Mo., 135 F.3d

1216, 1219 (8th Cir. 1998) (standard of review), because the record does not show

that Holly deliberately failed to comply with the June 28 order to submit extra copies

of his complaint. Holly may have effectively responded to the order in his July 27

filing by informing the court that he no longer had his legal materials. Moreover, it

is not clear whether Holly even retained a copy of his complaint (or his attempted

amended complaint) after he filed it, because after dismissal, he requested from the

district court a copy of his complaint so that he could amend it as directed. 

Finally, Holly was in state custody and was indigent: the record reflects that

he had only $2.87 in his state account at the time he was granted IFP status. Thus it

is likely that he did not have the means to make additional copies of his complaint.

In these circumstances, we conclude that dismissing Holly’s case--even without

prejudice--for failure to provide copies of his complaint was unduly harsh and was
-3-

contrary to the spirit of the IFP statute under which Holly was proceeding, because the

district court should not require a person who has been granted IFP status to prepare

copies of the complaint for service. See 28 U.S.C. § 1915(d) (when plaintiff is

proceeding IFP, court officers issue and serve all process and perform all duties). 

Accordingly, we reverse, and we remand for further proceedings consistent with

this opinion. We deny all pending motions.

______________________________