Armstrong v. Gentry

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

TEXARKANA DIVISION

KRISTOFER ARMSTRONG PLAINTIFF

v. Civil No. 4:22-CV-04088-SOH-BAB

ROBERT GENTRY, et. al. DEFENDANTS

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

This is a civil rights action filed pursuant to 42 U.S.C. § 1983. Pursuant to the provisions

of 28 U.S.C. § 636(b)(1) and (3), the Honorable Susan O. Hickey, Chief 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

Ronnie Luna, an inmate of the Sevier County Sheriff’s Office (“SCSO”), attempted to file

a Complaint on behalf of himself and 20 other SCSO inmates on September 13, 2022. (Luna v.

Gentry, Case No. 4:22-cv-04098). That same day, the Court entered an Order provisionally filing

the Complaint, and directing the Clerk to open separate actions on behalf of the 20 other inmates.

(Luna v. Gentry, Case No. 4:22-cv-04098, ECF No. 2). The Plaintiff in this case was one of those

inmates.

The Order was filed in the originating case, as well as all of the newly opened cases. (ECF

No. 2). All Plaintiffs were directed to submit a completed in forma pauperis (“IFP”) application

and an Amended Complaint by October 4, 2022. (Id.). Plaintiff filed his Amended Complaint and

IFP application on October 4, 2022. (ECF Nos. 4, 5). Because his IFP application was incomplete,

the Court entered an Order directing him to submit a completed IFP application or pay the filing

fee by October 27, 2022. (ECF No. 6). The Order advised Plaintiff that failure to comply by the

deadline would result in the dismissal of his case. This Order was not returned as undeliverable.

To date, Plaintiff has failed to return the completed IFP application or pay the filing fee,

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 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 Amended Complaint (ECF No. 4) be

DISMISSED WITHOUT PREJUDICE.

The parties have fourteen 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 12th day of December 2022.

/s/ Barry A. Bryant

HON. BARRY A. BRYANT

UNITED STATES MAGISTRATE JUDGE