# Buyard v. Finkbeiner

> District Court, W.D. Arkansas · June 30, 2023

URL: https://www.frixlaw.com/law-library/cases/10632762

## Case

- **Court:** District Court, W.D. Arkansas
- **Decided:** June 30, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10632762

## How later opinions describe it (automated extraction)

- stating that the district court possesses the power to dismiss sua sponte under Rule 41(b)

## Opinion text

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION

JAMES DESHAN BUYARD PLAINTIFF

v. Civil No. 6:23-CV-06062-SOH-CDC

SHERIFF SCOTT FINKBEINER (Sheriff, DEFENDANTS
Hot Springs County)

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 comply with the Local Rules
of Civil Procedure and failure to prosecute this case.
I. BACKGROUND
Plaintiff filed his Complaint in the Eastern District of Arkansas on May 16, 2023. (ECF
No. 2). It was transferred to this District on May 17, 2023. (ECF No. 4). That same day, the
Court entered Orders directing Plaintiff to file an in forma pauperis (“IFP”) application and an
Amended Complaint by June 7, 2023. (ECF Nos. 6, 7). These Orders and other mail sent to
Plaintiff were returned as undeliverable on May 30, 2023, and June 1, 2023. (ECF Nos. 8, 9). The
returned mail indicated Plaintiff was no longer at the Hot Spring County Jail, and no new address
for him was available. (Id.). The deadline for Plaintiff to inform the Court of his new address was
set for June 29, 2023. (ECF No. 8). Mail was again returned undeliverable from Hot Spring
County Jail on June 26, 2023. (ECF No. 10). To date, Plaintiff has never communicated directly
with this 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 keep the Court apprised of his current address as required by Local
Rule 5.5(c)(2). 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 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 30th day of June 2023.
/s/ Christy Comstock
HON. CHRISTY COMSTOCK
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10632762. Public record. Not legal advice.