Laurence Leach v. Waterway Car Wash

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-1931
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Laurence Leach, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Waterway Car Wash, *
* [UNPUBLISHED]
Appellee. *
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Submitted: February 27, 2007
Filed: March 2, 2007
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Before COLLOTON, MAGILL, and GRUENDER, Circuit Judges.
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PER CURIAM.
Laurence Leach appeals the district court’s dismissal with prejudice of his civil
complaint pursuant to Federal Rule of Civil Procedure 41(b). We construe Leach’s
notice of appeal as an implicit motion for leave to proceed in forma pauperis, and we
grant Leach’s request.
As to the merits, having carefully reviewed the record, we conclude that the
district court did not abuse its discretion in dismissing the complaint. Leach failed to
comply with the court’s order instructing him to serve defendant and to file a return
of service by a certain date, and the court had warned Leach that failure to comply
would result in dismissal of his complaint. See Good Stewardship Christian Ctr. v.
Empire Bank, 341 F.3d 794, 797 (8th Cir. 2003) (dismissal under Rule 41(b) reviewed
for abuse of discretion); Farnsworth v. City of Kansas City, Mo., 863 F.2d 33, 34 (8th
Cir. 1988) (per curiam) (pro se litigants are not excused from complying with court
orders). We believe, however, that the district court’s order should be modified to
dismiss the action without prejudice, as Leach’s conduct did not rise to the level of
willful disobedience or intentional delay. See Good Stewardship Christian Ctr., 341
F.3d at 797. Accordingly, we affirm, but modify the dismissal to be without
prejudice.
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