The opinion
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
ALLEN MOORE PLAINTIFF
v. Civil No. 4:20-cv-4105
DREW SARGENT, Hempstead County Detention
Center (“HCDC”); DJ WILLIAMS, HCDC; and
JAMES WISE, MCDC DEFENDANTS
REPORT AND RECOMMENDATION
Pursuant to the provisions of 28 U.S.C. §§ 636(b)(1) and (3), the Honorable Susan O.
Hickory, Chief United States District Judge, referred this case to the undersigned for the purpose
of making a Report and Recommendation. Before the Court is a Motion to Dismiss based on
Plaintiff’s failure to keep the Court and Defendants informed of his address. (ECF No. 34).
Plaintiff Allen Moore filed this 42 U.S.C. § 1983 action pro se on December 3, 2020. (ECF
No. 1). His application to proceed in forma pauperis (“IFP”) was granted that same day. (ECF
No. 3). This order informed Plaintiff of his obligation to keep the Court informed of his current
address. On January 24, 2022, mail sent to Plaintiff at his address of record was returned to the
Court as undeliverable marked “Return to sender. Refused. Unable to forward”. (ECF No. 32).1
On February 23, 2022, Defendants filed the instant motion stating they have been unable
to effect service of correspondence on Plaintiff. (ECF No. 34). That same day, the Court entered
an order directing Plaintiff to file a response to the motion by March 16, 2022. (ECF No. 37). On
March 8, 2022, the order sent to Plaintiff’s address of record was returned as undeliverable noting
Plaintiff had been paroled. (ECF No. 38).
1 Although mail sent to Plaintiff was returned to the Court as undeliverable on January 24, 2022, the Clerk mistakenly
filed the wrong document on the case docket in (ECF No. 32) from another case. Unfortunately, the Clerk did not
retain a copy of the returned mail.
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 keep the Court and Defendants informed of his address and failed
to prosecute this case. Therefore, pursuant to Federal Rule of Civil Procedure 41(b) and Local
Rule 5.5(c)(2), the Court finds that this case should be dismissed. Accordingly, I recommend
Defendant’s Motion to Dismiss (ECF No. 34) be GRANTED and Plaintiff’s Complaint (ECF No.
1) 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 21st day of March 2022.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE