Clardy v. Cox

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FORT SMITH DIVISION

BOBBY LEE CLARDY, JR. PLAINTIFF

v. Civil No. 2:22-CV-02148-PKH

POLICE OFFICER COX and DEFENDANTS

POLICE OFFICER HUEY

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 September 14, 2022. (ECF No. 1). On October 3, 2022,

the Court entered Order directing Plaintiff to file a completed in forma pauperis (“IFP”)

application and an Amended Complaint. (ECF Nos. 5, 6). Plaintiff did so on October 13, 2022.

(ECF Nos. 7, 8). Plaintiff was granted IFP status on October 14, 2022. (ECF No. 9).

The Court entered an Order on October 14, 2022, directing Plaintiff to file a Second

Amended Complaint to correct deficiencies in his Amended Complaint. (ECF No. 10). Plaintiff

was directed to submit his Second Amended Complaint by November 4, 2022, and advised that

failure to do so would result in the dismissal of his case. (Id.). This Order was not returned as

undeliverable.

To date, Plaintiff has failed to submit his Second Amended Complaint, 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 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. 7) 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 19th day of December 2022.

/s/

HON. MARK E. FORD

UNITED STATES MAGISTRATE JUDGE