Opinion

Bressman v. Medlin

Court
District Court, W.D. Arkansas
Filed
Nov 4, 2022
Cited by
0 cases
Authority
More cited than 31.2%

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

ZACHERY THOMAS BRESSMAN PLAINTIFF

v. Civil No. 2:22-cv-02130-PKH-MEF

DEPUTY CORPORAL TEANI MEDLIN DEFENDANTS

and CAPTAIN DUMAS

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. Also before the Court is Defendants’ Motion to Dismiss based on those

failures. (ECF No. 11).

I. BACKGROUND

Plaintiff filed his Complaint on August 10, 2022. (ECF No. 1). That same day, the Court

entered an Order granting Plaintiff in forma pauperis status. (ECF No. 3). The Order advised

Plaintiff that he must immediately inform the Court of any address change, or upon failing to do

so his case would be subject to dismissal. This Order was not returned as undeliverable.

On September 14, 2022, mail sent to Plaintiff was returned undeliverable. (ECF No. 10).

The deadline for Plaintiff to advise the Court of his new address was set for October 14, 2022.

(Id.). To date, Plaintiff has not provided the Court with a new address, and has not communicated

with the Court since filing his Complaint on August 10, 2022.

On November 2, 2022, Defendants filed their Motion to Dismiss. (ECF No. 11). In their

supporting brief, Defendants indicate that correspondence sent to Plaintiff was returned to them as

undeliverable on September 23, 2022, indicating Plaintiff was no longer incarcerated in the

Sebastian County Detention Center. (ECF No. 12 at 1). They further state that they have had no

contact from Plaintiff since his release.

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 a Court Order. 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

Accordingly, 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 4th day of November 2022.

/s/

HON. MARK E. FORD

UNITED STATES MAGISTRATE JUDGE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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