Bressman v. Bell

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FORT SMITH DIVISION

ZACHERY THOMAS BRESSMAN PLAINTIFF

v. Civil No. 2:22-CV-02135-PKH-MEF

DEPUTY BELL,

Sebastian County Detention Center;

NURSE ROCHELLE,

Sebastian County Detention Center;

DEPUTY HEWING,

Sebastian County Detention Center 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 a Court Order and failure to

prosecute this case.

I. BACKGROUND

Plaintiff filed his Complaint on August 23, 2022, alleging that he was denied medical care

at the Sebastian County Detention Center (“SCDC”) in violation of his constitutional rights. (ECF

No. 1). That same day, the Court issued an Order provisionally filing the Complaint and directing

Plaintiff to file a completed in forma pauperis (“IFP”) application by September 13, 2022. (ECF

No. 2). This Order advised Plaintiff that failure to submit the required documents by the deadline

would result in the summary dismissal of his case. (Id.). It further advised Plaintiff that he must

inform the Court of any address change within 30 days of such a change, or his case would be

subject to dismissal. (Id. at 2). This Order was returned as undeliverable with the notation “UTF”

and “return to sender-no longer here” on September 1, 2022. (ECF No. 4). The deadline for

Plaintiff to inform the Court of his new address was October 3, 2022. (Id.).

To date, Plaintiff has failed to inform the Court of his address and 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 the Court’s order directing him to submit a

complete IFP application. (ECF No. 2). Thus, Plaintiff has failed to prosecute this matter.

Accordingly, pursuant to Federal Rule of Civil Procedure 41(b) and Local Rule 5.5(c)(2),

it is recommended that Plaintiff’s Complaint 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’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 5th day of October 2022.

/s/

HON. MARK E. FORD

UNITED STATES MAGISTRATE JUDGE