Martin v. Boggs

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FORT SMITH DIVISION

WILLIAM DOUGLAS MARTIN PLAINTIFF

v. Civil No. 2:21-CV-02108

LARRY BOGGS DEFENDANT

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

This is a civil rights action filed pursuant to 42 U.S.C. § 1983. Pursuant to the provisions

of 28 U.S.C. § 636(b)(1) and (3) (2011), the Honorable P. K. Holmes, III, United States District

Judge, referred this case to the undersigned for the purpose of making a Report and

Recommendation.

Currently before the Court is Plaintiff’s failure to obey a Court Order and failure to

prosecute this case.

Plaintiff filed his Complaint on June 4, 2021. (ECF No. 1). On July 23, 2021, the summons

to Defendant was returned unexecuted, indicating the certified mail had been returned refused.

(ECF No. 8). On July 26, 2021, the Court entered an Order directing Plaintiff to provide an address

by August 16, 202, to serve Defendant Boggs. (ECF No. 9). In the Order, Plaintiff was advised

that failure to provide the information by the deadline would result in the dismissal of Defendant

Boggs from the case. (Id.). To date, Plaintiff has failed to provide any additional service

information for Defendant Boggs, the sole named Defendant in this case, and has not otherwise

communicated with the Court.

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). The local rules state 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. .

. . If 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 grounds 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 an 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).

Finally, while plaintiffs proceeding IFP are entitled to rely on the United States Marshal

Service to serve summons, an IFP Plaintiff is ultimately responsible for providing the Court with

a proper address for service. See Mack v. Dillon, 594 F.3d 620, 622 (8th Cir. 2010) (citing Rance

v. Rocksolid Granit USA, Inc., 583 F.3d 1284, 1286-88, n. 3 (11th Cir. 2009)); Lee v. Armontrout,

991 F.2d 487, 489 (8th Cir. 1993).

Plaintiff has failed to comply with a Court Order and provide a correct service address for

the sole Defendant in the case. Plaintiff has failed to prosecute this matter. Accordingly, pursuant

to Federal Rule of Civil Procedure 41(b) and Local Rule 5.5(c)(2), Plaintiff’s Complaint should

be dismissed without prejudice for failure to comply with the Court’s Local Rules and Orders and

failure to prosecute this case.

Accordingly, it is recommended that Plaintiff’s Complaint (ECF No. 1) be DISMISSED

WITHOUT PREJUDICE.

The parties have fourteen (14) days from receipt of the Report and Recommendation

in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely

objections may result in waiver of the right to appeal questions of fact. The parties are

reminded that objections must be both timely and specific to trigger de novo review by the

district court.

DATED this 24th day of September 2021.

/s/

HON. MARK E. FORD

UNITED STATES MAGISTRATE JUDGE