Lear v. Brown

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FORT SMITH DIVISION

ROBERT LLOYD LEAR PLAINTIFF

v. Civil No. 2:20-CV-02191

SHERIFF RON BROWN and DEFENDANTS

JAILER SAMANTHA GOODWIN

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 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.

I. BACKGROUND

Plaintiff filed his Complaint on October 20, 2020. (ECF No. 1). That same day, the Court

entered an Order directing Plaintiff to either complete an in forma pauperis application or pay the

filing fee. (ECF No. 2). The Order also advised Plaintiff that he must inform the Court of any

address change within 30 days of that change, or his case would be dismissed. Id. On April 28,

2021, mail sent to Plaintiff at the Crawford County Detention Center was returned as undeliverable

and Plaintiff’s deadline for informing the Court of his new address was set for May 28, 2021.

(ECF No. 16). To date, Plaintiff has not informed the Court of his new 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. 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.

IV. CONCLUSION

Accordingly, it is recommended that Plaintiff’s case 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 16th day of June 2021.

/s/

HON. MARK E. FORD

UNITED STATES MAGISTRATE JUDGE