Denaro v. Simmons

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FAYETTEVILLE DIVISION

JOHN DENARO PLAINTIFF

v. Civil No. 5:22-CV-05182

SYDNEY SIMMONS, Karas Medical;

SERGEANT JOHN PATRICK BOYD;

JANETT HANEY, Summit Food Service DEFENDANTS

MAGISTRATE’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 Timothy L. Brooks, 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 (ECF No. 1) and application to proceed in forma pauperis

(IFP) (ECF No. 2) on September 6, 2022. That same day, the Court issued an Order directing the

Clerk to file Plaintiff’s Complaint and IFP application and directing Plaintiff to maintain current

contact information with the Court. (ECF No. 3). The Order specifically directed Plaintiff to

update the Court within thirty (30) days of any change in his contact information, failing which it

would be recommended that this matter would be subject to dismissed. Id. The Order further

directed Plaintiff to submit additional financial information, specifically a certificate of inmate

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account and assets (to be completed by the institution of incarceration) so that this Court properly

could consider Plaintiff’s IFP application. Id. The Order was not returned as undeliverable.

The Court received Plaintiff’s complete IFP application on September 28, 2022. (ECF No.

5). The Court subsequently granted Plaintiff’s motion to proceed IFP and directed the Clerk to

collect the filing fee pursuant to 28 U.S.C. § 1915(b). Id. The Court used this Order as a

reminder to Plaintiff of his obligation to inform the Court of any change in address and the

possibility his action could be dismissed if he failed to keep the Court notified. (ECF No. 6). This

order was not returned as undeliverable.

Upon preservice screening pursuant to 28 U.S.C. § 1915A(a), the undersigned that several

of Plaintiff’s claims be dismissed for failure to state a claim as a matter of law but directed service

of Plaintiff’s remaining claims. (ECF Nos. 8 & 9). On October 31, 2022, the copy of the Report

and Recommendation which had been mailed to Plaintiff was returned undeliverable and marked

“RTS not at facility.” (ECF No. 11). Consistent with the Court’s prior orders, Plaintiff’s deadline

for submitting updated contact information was November 30, 2022. To date, Plaintiff has failed

to inform the Court of his current address. Since completion and submission of his IFP application

on September 28, 2022, (ECF No. 5), Plaintiff has not otherwise communicated with the Court. In

addition to return of the Report and Recommendation, the Court’s order directing service was

returned undeliverable on October 31, 2022 (ECF No. 12) as well as U.S. District Court Judge

Brooks’ Order adopting the Report and Recommendation which was returned undeliverable on

November 30, 2022. (ECF No. 17).

II. LEGAL STANDARD

Although pro se pleadings are to be construed liberally, a pro se litigant is not excused

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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) and as directed by this Court twice. 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.

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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 12" day of December 2022.

CHRISTY COMSTOCK

UNITED STATES MAGISTRATE JUDGE