467 F.3d 1120
8th Cir.
2006

Elliott HOLLY, Appellant, v. Amy ANDERSON; Deborah Konieska; Tony Kaufenberg; Mike Smith; Sandi Davis, Appellees.

No. 05-2882

United States Court of Appeals, Eighth Circuit.

Filed: Nov. 2, 2006.

467 F.3d 1120

Submitted: Oct. 27, 2006.

court’s comments do not make the prosecutor’s proffered reasons any less race-neutral or not asserted in good faith.

In summary, the court today fails to adhere to the narrow AEDPA standard by which we are bound. We are not permitted to grant habeas relief to a state prisoner because we would have ruled the objection differently had we been the state trial court, nor do we sit as a court of initial review over state trial judges. The state trial court permitted a full Batson inquiry and denied the objection after hearing the prosecution’s race-neutral reasons and the defense’s arguments of pretext. The Supreme Court of Missouri properly applied Batson, examined in detail the prosecutor’s reasons and found the race-neutral justifications for the strike to be credible, and affirmed. The Supreme Court of Missouri also found that the prosecutor had exercised a strike against a white juror that the court found was similarly situated, a finding that is not unreasonable. In my opinion, our court errs in summarily concluding, without citation to any Supreme Court case, that the Supreme Court of Missouri’s Batson analysis was an unreasonable application of clearly established Supreme Court precedent or an unreasonable determination of the facts. Further, our court points to no evidence, let alone clear and convincing evidence, that contradicts the state courts’ findings; we are therefore bound by the congressionally created presumption that those findings are correct.

Finally, the court’s remand instructions are both perplexing and troubling. In my view, our duty in habeas proceedings, as was the district court’s duty, is to review the state court record as it stands, not to “reconstruct” the surrounding circumstances to determine anew, as in the first instance (but actually 14 years after the event), whether a strike was racially motivated. Each of the cases cited by the court that ordered a remand, supra at 12, involved state courts that failed to make a Batson ruling. The same is not true here. Under the strict standard governing this appeal, I would affirm outright the district court’s well reasoned denial of the § 2254 petition.

Elliott Holly, pro se.

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, 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 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.