stating that the district court possesses the power to dismiss sua sponte under Rule 41(b)
How later courts described this case
- stating that the district court possesses the power to dismiss sua sponte under Rule 41(b)
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
MARK TRENTON WILLIAMS PLAINTIFF
v. Civil No. 2:22-CV-02029
SHERIFF HOBE RUNION, et. al. DEFENDANTS
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This is a civil rights action filed under 42 U.S.C. § 1983. Pursuant to the provisions of 28
U.S.C. § 636(b)(1) and (3), the Honorable P. K. Holmes, III, Senior 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 two Court Orders and his failure to
prosecute this case.
I. BACKGROUND
Plaintiff filed his Complaint on February 7, 2022. (ECF No. 1). That same day, the Court
entered an Order directing Plaintiff to file a completed in forma pauperis (“IFP”) application.
(ECF No. 2). On February 22, 2022, the Court entered an Order granting Plaintiff IFP status.
(ECF No. 5). Both Orders advised Plaintiff that he must immediately inform the Court of any
address change, or his case would be subject to dismissal. On February 25, 2022, the Court entered
an Order directing Plaintiff to correct a deficiency in his Complaint. (ECF No. 7). This Order was
returned as “undeliverable” on April 4, 2022, indicating that Plaintiff was no longer incarcerated
in the Boone County Jail, and no new address was available. (ECF No. 8). The deadline for
Plaintiff to inform the Court of his new address was set for May 4, 2022. (Id.).
To date, Plaintiff has failed to inform the Court of his new address, and he 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 two Court Orders. 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
For the reasons discussed above, it is recommended that Plaintiff 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 11th day of May 2022.
/s/
HON. MARK E. FORD
UNITED STATES MAGISTRATE JUDGE