The opinion
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
WILLIE AUNDREA MACK PLAINTIFF
v. Civil No. 4:23-cv-04077
NURSE STEPHANIE; and
WHITNEY HIGGINS DEFENDANTS
ORDER
Before the Court is Defendant Whitney Higgins’ Motion to Dismiss and Plaintiff Willie
Aundrea Mack’s failure to comply with Orders of the Court and prosecute this matter. On August
16, 2023, Plaintiff originally submitted this 42 U.S.C. § 1983 action pro se in the Eastern District
of Arkansas. ECF No. 2. Plaintiff submitted an application to proceed in forma pauperis (“IFP”)
on the same day. ECF No. 1. On August 18, 2023, the Eastern District transferred Plaintiff’s case
to this Court. ECF No. 3. On August 21, 2023, Plaintiff was granted IFP status. ECF No. 7.
On November 7, 2023, Defendant Higgins filed a Motion to Dismiss pursuant to Local
Rule 5.5(c)(2). ECF No. 18. Defendant Higgins attached an Affidavit of Attempted Service to
the Motion stating she was unable to effect service of her Answer on Plaintiff. ECF No. 20. The
service mailed to Plaintiff at his address of record, Sevier County Jail, was returned to Defendant
Higgins marked “Return to Sender no longer here.” ECF No. 20-1. Defendant Higgins received
this return on November 2, 2023. ECF No. 20, p. 1.
On November 9, 2023, the Court issued an Order directing Plaintiff to respond to
Defendant Higgins’ Motion to Dismiss. ECF No. 22. This Order was mailed to Plaintiff at the
Sevier County Jail and never returned as undeliverable mail. To date, Plaintiff has failed to
respond.
On November 21, 2023, the Court received a separate Order—sent to Plaintiff at Sevier
County Jail—returned as undeliverable. ECF No. 24. This Order was issued and mailed to
Plaintiff on October 24, 2023—prior to the mailing of the Order to Respond to Defendant Higgins’
Motion to Dismiss. ECF No. 15. On November 27, 2023, the Court received a second Order—
sent to Plaintiff at Sevier County Jail on November 9, 2023—returned as undeliverable mail. ECF
No. 25.1
0F
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
1 As Plaintiff has never communicated with the Court and two mailings sent to Plaintiff’s address of record were
returned as undeliverable, the Court did not find it necessary to enter an order to show cause in this matter.
and Local Rules. Therefore, pursuant to Federal Rule of Civil Procedure 41(b) and Local Rule
5.5(c)(2), the Court finds Defendant Higgins’ Motion to Dismiss (ECF No. 18) should be and
hereby is GRANTED. Plaintiff’s Complaint (ECF No. 2) is DISMISSED WITHOUT
PREJUDICE.
IT IS SO ORDERED, this 9th day of April, 2024.
/s/ Susan O. Hickey
Susan O. Hickey
Chief United States District Judge