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
FAYETTEVILLE DIVISION
JARROD ANTHONY PORTLOCK PLAINTIFF
v. Civil No. 5:21-cv-05187-TLB-MEF
DEPUTY GOLDEN, Benton County
Detention Center (BCDC); TURN KEY
HEALTH CLINICS, LLC, Medical Contractor
for the BCDC; and NURSE MOLLY ROY,
Turn Key Health Clinics, LLC DEFENDANTS
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. 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. The case is before the
Court on Defendants’ Motion to Dismiss (ECF No. 24).
I. DISCUSSION
On May 3, 2022, the Defendants filed a Motion to Dismiss for lack of prosecution (ECF
No. 24). In the Motion, Defendants indicate Plaintiff is no longer incarcerated in the Benton
County Detention Center (“BCDC”) and has failed to update his address. Plaintiff was moved to
the Arkansas Division of Correction and Defendants were able to locate him and take his
deposition. However, their written discovery requests have been returned as undeliverable.
Defendants maintain they should not have the burden of attempting to locate Plaintiff. They ask
that the case be dismissed.
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Plaintiff’s address of record is still the BCDC. When the case was filed, Plaintiff was
advised (ECF No. 3) that he had the burden of keeping the Court apprised of his current address
at all times. If Plaintiff was transferred to another jail or prison or released, he was advised he
had 30-days from the date of transfer or release in which to notify the Court of his new address.
Plaintiff was advised that failure to inform the Court of an address change shall result in dismissal
of the case.
Following the filing of the Motion to Dismiss, the Court entered a Show Cause Order (ECF
No. 25). Plaintiff was given until May 24, 2022, to show cause why he failed to obey the Order
of the Court. If he failed to respond to the Show Cause Order, Plaintiff was advised that the case
shall be subject to dismissal.
As expected, the Show Cause Order was returned as undeliverable (ECF No. 26). In
accordance with the Court’s normal practice, a 30-day deadline was established for Plaintiff to
submit a new address. The new address was due by June 17, 2022. To date, Plaintiff has not
provided the Court with a new address. The last document filed by the Plaintiff was on January
31, 2022.
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
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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 Defendants’ Motion to Dismiss (ECF No. 24) be
GRANTED. This case should be DISMISSED WITHOUT PREJUDICE pursuant to Rule
41(b) of the Federal Rules of Civil Procedure 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).
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 23rd day of June 2022.
/s/
HON. MARK E. FORD
UNITED STATES MAGISTRATE JUDGE
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