The opinion
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
JOHN ALVIN FARGIS PLAINTIFF
v. Civil No. 1:21-cv-1051
OFFICER GILBERT, NAROTICS DIVISION, EL DORADO
POLICE DEPARTMENT; JAIL ADMINISTRATOR
RICHARD MITCHAM, UNION COUNTY DETENTION
CENTER; DR. DEANNA HOPSON, PHYSICIAN
FOR THE UNION COUNTY DETENTION CENTER;
AND SHERIFF RICKEY ROBERTS, UNION COUNTY,
ARKANSAS 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. 28).
Plaintiff John Alvin Fargis filed this 42 U.S.C. § 1983 action pro se on October 29, 2021.
(ECF No. 1). He also submitted an incomplete in forma pauperis (“IFP”) application. (ECF No.
2). That same day the Court entered an order directing Plaintiff to file a completed IFP application
by November 19, 2021. (ECF No. 3). This order informed Plaintiff he would have 30 days from
the date he was transferred from a jail or other facility to inform the Court of his new address, or
his case would be dismissed without prejudice for failure to prosecute. Id. On November 29, 2021,
Plaintiff’s IFP application was granted. (ECF No. 6).
On June 13, 2022, Plaintiff notified the Court in a telephone call to the undersigned’s
chambers that he had been released from custody and was residing at the Shalom Recovery Center
in Hot Springs, Arkansas. See Staff notes dated June 13, 2022. On July 20, 2022, Defendants filed
the instant motion stating, “Undersigned counsel’s office contacted the Shalom Recovery Center
located at 2446 E. Grand Avenue, Hot Springs, Arkansas 71901, Plaintiff’s last known address per
PACER. However, undersigned counsel’s office was informed that the Plaintiff is no longer
residing in the facility as of June 30, 2022.” (ECF No. 28). Defendants ask the Court to dismiss
the case based on Plaintiff’s failure to keep the Court informed of his address. Id.
On July 25, 2022, the Court entered an order directing Plaintiff to file a response to the
Motion to Dismiss by August 15, 2022. (ECF No. 30). Plaintiff did not respond, and the Court’s
order was not returned as undeliverable. On August 16, 2022, the Court entered an order directing
Plaintiff to show cause by September 6, 2022, as to why he failed to respond to Defendants’
motion. (ECF No. 31). On September 2, 2022, the show cause order was returned to the Court as
undeliverable indicating “Not here, RETURN TO SENDER NOT DELIVERABLE AS
ADDRESSED UNABLE TO FORWARD”. (ECF No. 34).
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. 28) 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 9th day of September 2022.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE