Opinion

Mack v. Higgins

Court
District Court, W.D. Arkansas
Filed
Feb 2, 2024
Cited by
0 cases
Authority
More cited than 17.2%

The opinion

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

TEXARKANA DIVISION

WILLIE AUNDREA MACK PLAINTIFF

v. Civil No. 4:23-cv-04081

SUPERVISOR WHITNEY HIGGINS;

STEPHANIE BAGWELL;

JAILER EMILY MORRIS; and

JAILER RICKY ANDRADE DEFENDANTS

ORDER

Plaintiff, Willie Aundrea Mack, originally submitted this 42 U.S.C. § 1983 action pro se,

on August 23, 2023. (ECF No. 1). Plaintiff also submitted an application to proceed in forma

pauperis (“IFP”) and the Court granted Plaintiff IFP status on the same day. (ECF Nos. 2, 3).

Currently before the Court is Plaintiff’s failure to comply with Orders of the Court and prosecute

this matter.

On October 30, 2023, Separate Defendant Bagwell filed a Motion to Dismiss for failure to

state a claim. (ECF No. 13). On October 31, 2023, the Court ordered Plaintiff to respond to

Defendant Thorne’s Motion. (ECF No. 15).

On November 7, 2023, Separate Defendants Andrade, Higgins, and Morris filed a Motion

to Dismiss pursuant to Local Rule 5.5(c)(2). (ECF No. 17). On November 9, 2023, the Court

issued an Order directing Plaintiff to respond to Separate Defendants’ Motion to Dismiss no later

than November 30, 2023. (ECF No. 20).

Both orders directing Plaintiff to respond to these motions were mailed to Plaintiff’s

address of record at the Sevier County Jail. The October 31, 2023 Order to respond was returned

as undeliverable mail on November 21, 2023. (ECF No. 21). The November 9, 2023 Order to

respond was not returned as undeliverable mail. To date, however, Plaintiff has failed to respond

to either motion, and the deadline to do so has passed.1

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 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).

Here, Plaintiff has wholly failed to prosecute this case and comply with the Court’s Orders

and Local Rules. Therefore, pursuant to Federal Rule of Civil Procedure 41(b) and Local Rule

5.5(c)(2), the Court finds Plaintiff’s Complaint (ECF No. 1) is DISMISSED WITHOUT

PREJUDICE.

IT IS SO ORDERED, this 2nd day of February, 2024.

/s/ Susan O. Hickey

Susan O. Hickey

Chief United States District Judge

1Other than filing his complaint and IPF application, Plaintiff has not communicated with this Court. Further, mailings

sent to the only address available to the Court are being returned as undeliverable. Thus, the Court determined it

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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