Owens v. Strother

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

HOT SPRINGS DIVISION

MARCUS ONEIL LAQUIENT OWENS PLAINTIFF

v. Civil No. 6:22-cv-06108-SOH-BAB

LIEUTENANT R. STROTHER DEFENDANT

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 two Court orders and

failure to prosecute this case.

I. BACKGROUND

Plaintiff filed his Complaint on October 14, 2022. (ECF No. 1). He was granted in forma

pauperis (“IFP”) status on that same day. (ECF No. 3). In the IFP Order, Plaintiff was advised he

must inform the Court of any address change within 30 days or his case would be subject to

dismissal. (Id.). On November 3, 2022, the Court entered an Order directing Plaintiff to submit

an Amended Complaint to correct deficiencies in his initial Complaint by November 25, 2022.

(ECF No. 6). This Order was not returned as undeliverable. When Plaintiff failed to submit his

Amended Complaint, the Court entered a Show Cause Order directing Plaintiff to respond by

January 9, 2023. (ECF No. 7). Both Orders advised Plaintiff that failure to respond by the deadline

would result in the dismissal of his case.

On February 10, 2023, the Show Cause Order was returned as undeliverable, indicating

Plaintiff was no longer incarcerated in the Arkansas Division of Correction Omega Unit, and

providing a forwarding address to a free-world address. (ECF No. 8). The Show Cause Order was

resent to the forwarding address. The Order has not been returned as undeliverable. To date,

Plaintiff has failed to submit an Amended Complaint or his Show Cause Response and has not

communicated with the Court since filing his Complaint on October 14, 2022.

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 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 23rd day of February 2023.

/s/ Barry A. Bryant

HON. BARRY A. BRYANT

UNITED STATES MAGISTRATE JUDGE