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
MARK TRENTON WILLIAMS PLAINTIFF
v. Civil No. 2:21-CV-02193-PKH-MEF
GUARD HOLT, et. al. 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 two Court Orders and failure to
prosecute this case.
I. BACKGROUND
Plaintiff filed his Complaint on December 1, 2021. (ECF No. 1). The Orders
provisionally filing the Complaint and granting Plaintiff in forma pauperis status both advised
him that he must immediately inform the Court of any address change, or his case would be
subject to dismissal. (ECF Nos. 3, 6).
On February 15, 2022, the undersigned entered a Report and Recommendation which
recommended dismissing Plaintiff’s official capacity claims, as well as his claims concerning
verbal threats, dirty cells, and theft of his personal property. (ECF No. 8). This Report and
Recommendation was adopted on March 9, 2022. (ECF No. 10). Plaintiff’s claim against
Defendant Holt for denial of access to a restroom on two occasions, as well as his denial of
medical care claim against Defendants Doctor John Doe and Nurses John or Jane Doe remained
for further review. (ECF Nos. 8, 10).
On August 22, 2022, Defendant Holt filed a Notice of Returned Mail Sent to Plaintiff.
(ECF No. 19). Defendant Holt stated that mail sent to Plaintiff in the Sebastian County
Detention Center was returned as undeliverable, indicating that Plaintiff was no longer
incarcerated in the facility. (Id.). Defendant Holt was also unable to locate Plaintiff in the
Arkansas Division of Correction. (Id.). On August 29, 2022, mail sent to Plaintiff by the Court
was returned as undeliverable, with no forwarding address. (ECF No. 20). The deadline for
Plaintiff to inform the Court of his new address was set for September 28, 2022. (Id.).
To date, Plaintiff has failed to inform the Court of his new address, and he 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 two Court Orders. 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 18th day of November 2022.
/s/
HON. MARK E. FORD
UNITED STATES MAGISTRATE JUDGE