The opinion
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
JAMES DANIEL PRICE PLAINTIFF
v. Civil No. 1:23-cv-01021-SOH-BAB
OFFICER LINDA HOWE DEFENDANT
REPORT AND RECOMMENDATION
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. Before the Court is Defendant’s Motion to Dismiss.
(ECF No. 18). Plaintiff has not responded and the time to do so has passed.
I. BACKGROUND
Plaintiff James Daniel Price filed this 42 U.S.C. § 1983 action pro se, on March 16, 2023,
along with a Motion to Proceed in forma paupris (“IFP”). (ECF No. 1). His application to proceed
IFP was granted that same day. (ECF No. 3).
On August 28, 2023, Defendant filed a Motion to Compel. (ECF No. 13). In this Motion,
Defendant explained they served Plaintiff with discovery requests on May 24, 2023. Plaintiff
failed to respond. On July 26, 2023, Defendant sent a letter to Plaintiff requesting the past due
discovery responses. The letter was never delivered. On August 14, 2023, Defendant resent the
letter requesting discovery responses. It was delivered, but Plaintiff never responded. (ECF No.
13). Then Defendant filed her Motion to Compel. Plaintiff failed to respond to Defendant’s
Motion.
On October 3, 2023, the Court granted Defendant’s Motion to Compel, and ordered
Plaintiff to respond to Defendant’s discovery request by October 16, 2023. Plaintiff was cautioned
that failure to comply with this Order and produce the discovery responses would subject this case
to dismissal. (ECF No. 17).
Defendant filed the instant Motion to Dismiss on October 18, 2023. In her Motion,
Defendant notified the Court of Plaintiff’s failure to comply with the Court’s Order to Compel
discovery production. (ECF No. 18). To date, Plaintiff has not filed a response to Defendant’s
Motion to Dismiss or produced the Court ordered discovery responses.
Plaintiff has not communicated with the Court since April 5, 2023 when he filed a Notice
of Change of Address. In this Notice, Plaintiff informed the Court he was released and provided
a free-world address. (ECF No. 8).
II. DISCUSSION
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). Local Rule 5.5(c)(2) states 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 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).
Plaintiff has failed to comply with the Court’s Order to Compel, and to prosecute this case.
Therefore, pursuant to Federal Rule of Civil Procedure 41(b) and Local Rule 5.5(c)(2), I
recommend Defendant’s Motion to Dismiss (ECF No. 18) be GRANTED and Plaintiff’s
Complaint (ECF No. 1) 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 21st day of December 2023.
Barry A. Bryant
/s/
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE