Jenks v. B and L Towing and Recovery

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FAYETTEVILLE DIVISION

TIMOTHY LEE JENKS PLAINTIFF

v. Civil No. 5:21-cv-05192

B and L TOWING and RECOVERY DEFENDANT

REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

This is a civil rights action filed by the Plaintiff pursuant to 42 U.S.C. § 1983. Plaintiff

proceeds pro se and in forma pauperis (“IFP”). Pursuant to the provisions of 28 U.S.C. §§

636(b)(1) and (3), the Honorable Timothy L. Brooks, United States District Judge, referred this

case to the undersigned for the purpose of making a Report and Recommendation.

I. DISCUSSION

When he filed this case, Plaintiff was incarcerated in the Benton County Detention Center

(“BCDC”). On December 20, 2021, Plaintiff submitted a change of address (ECF No. 9)

indicating he had been released from incarceration. All mail that had been returned as

undeliverable was resent to Plaintiff’s new address in Jay, Oklahoma (ECF Nos. 10-11). On

January 3, 2022, Plaintiff again filed a notice of change of address to Gentry, Arkansas (ECF No.

13). Mail sent to Plaintiff at the Jay, Oklahoma, address which was returned to the Court as

undeliverable (ECF Nos. 15 & 17) was resent to Gentry, Arkansas.

In accordance with the Court’s regular practice, Plaintiff was directed (ECF No. 14) to

provide the Court with an updated IFP application reflecting his financial circumstances since his

release in order for the Court to determine his continuing eligibility for IFP status. The new IFP

form was to be returned to the Court by January 24, 2022. Plaintiff was advised that the case

would be subject to dismissal if he did not submit the IFP application or pay whatever portion of

the $350.00 filing fee remained.

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Plaintiff did not submit the new IFP application by January 24, 2022, and the Order

directing its filing (ECF No. 14) was not returned as undeliverable. On February 10, 2022, a

Show Cause Order (ECF No. 16) was entered. Plaintiff was given until March 3, 2022, to show

cause why this case should not be dismissed based on his failure to comply with the Court’s Order

(ECF No. 14) directing him to submit a new IFP application. Plaintiff was advised that failure to

respond to the Show Cause Order would result in the dismissal of the case.

To date, Plaintiff has not responded to the Show Cause Order. He has not requested an

extension of time to do so. The Show Cause Order (ECF No. 16) has not been returned as

undeliverable.

The Federal Rules of Civil Procedure specifically contemplate dismissal of a case on the

ground that the plaintiff failed to prosecute or failed to comply with an order of the court. Fed.

R. Civ. P. 41(b); Line 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).

Additionally, Rule 5.5(c)(2) of the Local Rules for the Eastern and Western Districts of Arkansas

requires parties appearing pro se to monitor the case, and to prosecute or defend the action

diligently.

II. CONCLUSION

For these reasons, it is recommended that, pursuant to Rule 41(b), the Plaintiff’s Complaint

(ECF No. 1) be DISMISSED WITHOUT PREJUDICE based on Plaintiff’s failure to prosecute

this case, his failure to obey the orders of the Court, and his failure to comply with Local Rule

5.5(c)(2). Fed. R. Civ. P. 41(b).

The parties have fourteen (14) days from receipt of the Report and Recommendation

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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 18th day of March 2022.

/s/ Christy Comstock

CHRISTY COMSTOCK

UNITED STATES MAGISTRATE JUDGE

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