# Duke v. Smith

> District Court, W.D. Arkansas · May 14, 2020

URL: https://www.frixlaw.com/law-library/cases/10632119

## Case

- **Court:** District Court, W.D. Arkansas
- **Decided:** May 14, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10632119

## How later opinions describe it (automated extraction)

- stating that the district court possesses the power to dismiss sua sponte under Rule 41(b)

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10632119. Public record. Not legal advice.