The opinion
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
LANCE THOMAS RAY SHOCKLEE PLAINTIFF
v. Civil No. 1:21-cv-1059
JONATHAN MESSER, HEAD DRUG TASK FORCE;
HOUSTON BRADSHAW, DTF; AARON GALBERT,
DTF; CAPTAIN RICHARD MITCHAM, UNION COUNTY
DETENTION CENTER; AND OFFICER TUBBS, UCDC 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 prosecute this case. (ECF No. 23).
Plaintiff Lance Thomas Ray Shocklee filed this 42 U.S.C. § 1983 action pro se on
November 18, 2021. (ECF No. 1). His application to proceed in forma pauperis was granted that
same day. (ECF No. 3). In response to this Court’s order, on December 2, 2021, Plaintiff filed an
Amended Complaint. (ECF No. 7).
On July 15, 2022, Defendants filed the instant motion stating Plaintiff failed to appear for
his deposition on June 15, 2022, and the notice of deposition sent via regular mail to his address
of record was not returned.1 (ECF No. 23). That same day, the Court entered an order directing
Plaintiff to file a response to the motion by August 5, 2022. (ECF No. 25). Plaintiff did not
respond, and the Court’s order was not returned as undeliverable. On August 3, 2022, the Court
entered an order directing Plaintiff to show cause as to why he failed to respond to Defendants’
1 In addition to sending the notice of deposition regular mail, Defendants state they also sent the notice via
certified mail, but the certified mail was never claimed.
motion to dismiss. (ECF No. 26). To date, Plaintiff has not responded to the order to show cause
and the order has not been returned to the Court as undeliverable.
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 comply with orders of the Court 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. 23) be GRANTED and Plaintiff’s Amended Complaint (ECF No. 7) 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 6th day of September 2022.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE