The opinion
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
TARRANCE LAMAR FOSTER PLAINTIFF
v. Civil No. 5:21-cv-05147
SHERIFF TIM HELDER, Washington
County, Arkansas; LIEUTENANT MIKE
ARNOLD; SERGEANT COLTON BEAVERS;
CORPORAL ROBERT BABIONE; CORPORAL
ROBERT RAINES; OFFICER NICHOLAS
SCHMITT DEFENDANTS
REPORT AND RECOMMENDATION
This is a civil rights action filed by Plaintiff pursuant to 42 U.S.C. § 1983. Plaintiff,
Tarrance Lamar Foster, proceeds in this matter pro se and in forma pauperis. (ECF No. 1, 9).
Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3) (2011), the Honorable Timothy L.
Brooks, United States District Judge, referred this case to the undersigned for the purpose of
making a Report and Recommendation.
Currently before the Court is Defendants’ Motion to Dismiss which was filed on February
9, 2022. (ECF No. 17). Defendants’ Motion seeking dismissal is premised on the fact that they
have been unable to affect service of correspondence and pleadings upon Plaintiff – with the mail
being returned marked “Return to Sender – Not at Facility.” (ECF No. 19).
The Court directed Plaintiff to respond to the Motion by March 3, 2022. (ECF No. 20).
The Court’s text only Order further stated: “Plaintiff is advised that failure to timely and properly
comply with this Order shall result in the dismissal of this action, without prejudice, pursuant to
Local Rule 5.5(c)(2). Id.
Plaintiff did not file a response to the Defendants’ Motion to Dismiss as required by the
Court Order. Further, on March 7, 2022, the Court received returned mail addressed to the
Plaintiff. The returned mail is marked "Return to Sender Not at Facility.” (ECF No. 23). The
Court has no new address for the Plaintiff.
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). Local Rule 5.5(c)(2) states 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).
Plaintiff has failed to obey an Order of the Court and has failed to prosecute this matter.
Therefore, pursuant to Federal Rule of Civil Procedure 41(b) and Local Rule 5.5(c)(2), it is
recommended that Defendants’ Motion to Dismiss (ECF No. 17) be GRANTED and that
Plaintiff’s Complaint in this 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.
IT IS SO ORDERED this 7th day of March 2022.
/s/ Christy Comstock
CHRISTY COMSTOCK
UNITED STATES MAGISTRATE JUDGE