Zamora v. Pineda

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FAYETTEVILLE DIVISION

ANDREW LUIS ZAMORA PLAINTIFF

V. CASE NO. 5:19-CV-05196

SERGEANT CARLOS PINEDA DEFENDANT

OPINION AND ORDER

Plaintiff Andrew Luis Zamora filed this 42 U.S.C. § 1983 action pro se and in forma

pauperis on October 17, 2019. Before the Court are two Motions to Dismiss filed by the

sole remaining Defendant Sergeant Carlos Pineda. (Docs. 14 & 20). Plaintiff has not

responded to the Motions, and the time to do so has passed. The Court finds this matter

ripe for consideration.

Il. DISCUSSION

The first Motion to Dismiss (Doc. 14) states that on November 26, 2019, Plaintiff

was mailed a written notice of Defendant's intent to take Plaintiffs deposition. The copy

of the Notice of Deposition was sent to 323 Callahan, Muskogee, OK 74403, the address

of record listed for Plaintiff on the Court’s docket. The Notice of Deposition informed

Plaintiff that the deposition was to be held on December 4, 2019, at the Washington

County Detention Center, 1155 Clydesdale, Fayetteville, AR. The written notice was not

returned as undeliverable.

At approximately 10:29 a.m. on December 4, 2019, when Plaintiff did not appear

for his deposition, Defendant's counsel went on the record and confirmed that Plaintiff

had failed to appear. (Doc. 14-2 at 3). In the Motion to Dismiss, Defendant's counsel

indicates that Plaintiff has not communicated with her. Defendant also notes that the

last document Plaintiff filed with the Court was on November 15, 2019, when he

submitted a change of address. (Doc. 10). Defendant requests that the case be

dismissed. Alternatively, Defendant asks that he be awarded the reasonable costs,

including attorney’s fees, caused by Plaintiffs failure to appear for the deposition

pursuant to Federal Rule of Civil Procedure 37(d)(A)(i) and that the case be stayed until

those costs are paid. Dismissal of a lawsuit, in whole or in part, is a proper sanction

under Rule 37 of the Federal Rules of Civil Procedure.

On January 6, 2020, the Court entered an Order (Doc. 16) directing Plaintiff to

respond to Defendant's Motion to Dismiss by January 27, 2020. Plaintiff was advised

that failure to timely and properly comply with the Order “shall result” in the dismissal of

this action. The Order was mailed to the Plaintiffs address of record and has not been

returned as undeliverable. To date, Plaintiff has not responded to the Motion to Dismiss

nor sought an extension of time to do so nor communicated with the Court in any way.

On February 5, 2020, the Court received a number of documents returned as

undeliverable. (Docs. 9, 10, 12, 13, 17). No new address for the Plaintiff was provided.

In accordance with the Court's earlier Order (Doc. 3), Plaintiff was given until March 6,

2020, to provide the Court with a new address.

On February 11, 2020, Defendant filed a second Motion to Dismiss. (Doc. 20). In

this Motion, Defendant moves to dismiss the case on the grounds that Plaintiff failed to

appear at his deposition, failed to respond to the Court’s Order, and failed to keep the

Court informed of his current address.

Although pro se pleadings are to be construed liberally, a pro se litigant is not

excused from complying with substantive and procedural law. Burgs v. Sissel, 745 F.2d

526, 528 (8th Cir. 1984). Rule 5.5(c)(2) of the Local Rules for the Eastern and Western

Districts of Arkansas states in pertinent part:

It is the duty of any party not represented by counsel to promptly notify the

Clerk and the other parties to the proceedings of any change in his or her

address, to monitor the progress of the case, and to prosecute or defend

the action diligently . . . lf any communication from the Court to a pro se

plaintiff is not responded to within thirty (30) days; the case may be

dismissed without prejudice. Any party proceeding pro se shall be expected

to be familiar with and follow the Federal Rules of Civil Procedure.

Local Rule 5.5(c)(2).

Additionally, the Federal Rules of Civil Procedure specifically contemplate

dismissal of a case on the ground that the plaintiff failed to prosecute or failed to comply

with orders of the court. Fed. R. Civ. P. 41(b); Link v. Wabash R.R. Co., 370 U.S. 626,

630-31 (1962) (stating that the district court possesses the power to dismiss sua sponte

under Rule 41(b)). Pursuant to Rule 41(b), a district court has the power to dismiss

action based on “the plaintiff s failure to comply with any court order.” Brown v. Frey,

806 F.2d 801, 803-04 (8th Cir. 1986) (emphasis added).

ll. CONCLUSION

Plaintiff failed to appear for his deposition, failed to obey an Order of the Court,

and failed to prosecute this case. Therefore, pursuant to Federal Rules of Civil

Procedure 37, 41(b) and Local Rule 5.5(c)(2), the Court finds that this case should be

dismissed.

Accordingly, Defendant’s Motions to Dismiss (Docs. 14 & 20) are GRANTED. The

case is DISMISSED WITHOUT □□□

IT IS SO ORDERED on this lo day of March, 2020. _—

AION

AMG (L. BRE OOKS

4 UNITED S¥ATES DISTRICT JUDGE