Duke v. Smith

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

TEXARKANA DIVISION

CAELIN DUKE PLAINTIFF

v. Civil No. 4:20-CV-04012

CORPORAL SMITH, et. al. DEFENDANTS

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

This is a civil rights action provisionally 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 Susan O. Hickey, Chief

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.

I. BACKGROUND

Plaintiff filed his Complaint on January 23, 2020. (ECF No. 1). In the Order granting

Plaintiff in forma pauperis status, Plaintiff was advised that he must inform the Court of any

address change within thirty days of his transfer or release, or his case would be subject to

dismissal. (ECF No. 6). On April 2nd and April 9th of 2020, mail sent to Plaintiff at the Miller

County Correctional facility was returned as undeliverable. (ECF Nos. 16, 17). The deadline for

Plaintiff to advise the Court of his new address was May 4, 2020. (ECF No. 16). On April 30,

2020, Defendants filed a Motion asking the Court to order Plaintiff to update his address. (ECF

No. 20). Defendants’ Motion was denied, noting that Plaintiff had until May 4, 2020, to inform

the Court of his new address. (ECF No. 21). Plaintiff failed to Respond to either Defendants’

Motion or the Court’s Order denying the Motion. To date, Plaintiff has failed to inform the Court

of his current address, and has not otherwise communicated with the Court.

II. LEGAL STANDARD

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).

III. ANALYSIS

Plaintiff has failed to keep the Court apprised of his current address as required by Local

Rule 5.5(c)(2). Plaintiff has failed to comply with a Court Order. Plaintiff has failed to prosecute

this matter.

IV. CONCLUSION

Accordingly, pursuant to Federal Rule of Civil Procedure 41(b) and Local Rule 5.5(c)(2) I

recommend that 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.

The parties have fourteen 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 14th day of May 2020.

/s/ Barry A. Bryant

HON. BARRY A. BRYANT

UNITED STATES MAGISTRATE JUDGE