Saldivar v. Drumwright

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FAYETTEVILLE DIVISION

PEDRO SALDIVAR, JR. PLAINTIFF

v. Civil No. 5:23-cv-05048-TLB-MEF

CORPORAL DRUMWRIGHT,

Washington County Detention Center DEFENDANT

REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

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

proceeds pro se and in forma pauperis. 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. The case is before the

Court on the Plaintiff’s failure to obey the Court’s Orders.

I. DISCUSSION

Plaintiff filed this case on March 31, 2023. An Order (ECF No. 3) was entered advising

Plaintiff that his in forma pauperis (“IFP”) application was deficient as it did not contain a

certificate regarding the funds held in his inmate account. Plaintiff was given until April 21, 2023,

to either pay the $402 filing fee or submit a completed IFP application by providing the certificate

of account. Plaintiff was advised that failure to comply with the Order would result in the

summary dismissal of the case.

Plaintiff did not pay the filing fee or file the certificate of account by April 21, 2023. On

May 3, 2023, a Show Cause Order (ECF No. 5) was entered. Plaintiff’s response to the Show

Cause Order was due by May 24, 2023. Plaintiff was advised that failure to comply with the

Show Cause Order “shall” result in the dismissal of the case.

To date, Plaintiff has not paid the filing fee, filed the certificate of account, or responded

to the Show Cause Order. He has not requested an extension of time to file his responses. No

mail has been returned as undeliverable. Plaintiff has failed to comply with the Court’s Orders

(ECF Nos. 3 & 5).

The Federal Rules of Civil Procedure specifically contemplate dismissal of a case on the

ground that the plaintiff failed to prosecute or failed to comply with an order of the court. Fed.

R. Civ. P. 41(b); Line 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).

Additionally, Rule 5.5(c)(2) of the Local Rules for the Eastern and Western Districts of Arkansas

requires parties appearing pro se to monitor the case, and to prosecute or defend the action

diligently.

II. CONCLUSION

For these reasons, it is recommended that, pursuant to Rule 41(b) of the Federal Rules of

Civil Procedure, the case be DISMISSED WITHOUT PREJUDICE based on Plaintiff’s failure

to prosecute this case, his failure to obey the orders of the Court, and his failure to comply with

Local Rule 5.5(c)(2).

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 2nd day of June 2023.

/s/

HON. MARK E. FORD

UNITED STATES MAGISTRATE JUDGE