stating that the clerk’s docket entries are presumed correct in the absence of reliable evidence to the contrary
How later courts described this case
- stating that the clerk’s docket entries are presumed correct in the absence of reliable evidence to the contrary
- noting the district court’s power to dismiss based on “the plaintiff’s failure to comply with any court order”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
MICHAEL V. GARDNER PLAINTIFF
v. Case No. 4:19-cv-4068
CORPORAL SMITH, Miller County
Detention Center (“MCDC”); CORPORAL
HINDERSON, MCDC; CAPTAIN GOLDEN
ADAMS, MCDC; and WARDEN WALKER,
MCDC DEFENDANTS
ORDER
Before the Court is the Report and Recommendation filed October 17, 2019, by the
Honorable Barry A. Bryant, United States Magistrate Judge for the Western District of Arkansas.
(ECF No. 20). Judge Bryant recommends that the Court dismiss Plaintiff Michael V. Gardner’s
claims against Defendant Hinderson pursuant to Federal Rule of Civil Procedure 4(m) because
Plaintiff has not provided the Court with information to effect service on him and the time for
service under Rule 4(m) has passed.
Plaintiff has not filed objections to the Report and Recommendation, and the time to object
has passed.1 See 28 U.S.C. § 636(b)(1). Therefore, the Court adopts the Report and
1 On August 5, 2019, Judge Bryant ordered Plaintiff to provide service information for Defendant Hinderson. Plaintiff
did not, and on October 2, 2019, Judge Bryant issued a show cause order. Plaintiff responded to the show cause order
on October 24, 2019, seeming to request relief under Rule 5(d)(1), which governs the requirements for the form and
filing of pleadings. Plaintiff’s response did not, however, explain why he had not provided service information for
Defendant Hinderson. On October 17, 2019, the Court mailed the instant report and recommendation to Plaintiff at
his then-address of record, 3201 Ash Street, Texarkana, AR 71854. That order was not returned as undeliverable. On
November 4, 2019, Plaintiff filed a notice of change of address, indicating that he is now incarcerated in the Bowie
County Correctional Center, and requesting that the Court re-mail any recent correspondence to him, including the
instant report and recommendation. That Plaintiff specifically requested the instant report and recommendation says
to the Court that he previously received and was aware of the same, a thought that is further bolstered by the fact that
the Court’s initial mailing of the report and recommendation was not returned as undeliverable. See Arnold v. Wood,
238 F.3d 992, 995-96 (8th Cir. 2001) (stating that the clerk’s docket entries are presumed correct in the absence of
reliable evidence to the contrary). Plaintiff has neither asserted that he never received the report and recommendation
nor requested an extension of time to respond to the report and recommendation, so the Court does not deem it
Recommendation (ECF No. 20) in toto. Accordingly, Plaintiff’s claims against Defendant
Hinderson are DISMISSED WITHOUT PREJUDICE.
IT IS SO ORDERED, this 7th day of November, 2019.
/s/ Susan O. Hickey
Susan O. Hickey
Chief United States District Judge
necessary to delay this ruling. However, even if Plaintiff’s change of address somehow presented cause to not dismiss
Defendant Hinderson under Rule 4(m), dismissal would nonetheless be proper under Rule 41(b) and Local Rule
5.5(c)(2) due to Plaintiff’s failure to obey Judge Bryant’s August 5, 2019 order directing him to provide service
information. See Brown v. Frey, 806 F.2d 801, 803-04 (8th Cir. 1986) (noting the district court’s power to dismiss
based on “the plaintiff’s failure to comply with any court order”).