Neice v. State of Arkansas

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FORT SMITH DIVISION

RICHARD WILLIAM NEICE PLAINTIFF

v. Civil No. 2:24-CV-02014-SOH-MEF

STATE OF ARKANSAS, et. al. DEFENDANTS

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 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 three Court Orders and failure to prosecute

this case.

I. BACKGROUND

Plaintiff filed his Complaint and a Motion to Proceed in forma pauperis (“IFP”) on January

24, 2024. (ECF Nos. 1, 2). That same day, the Court entered an Order directing him to correct

deficiencies in both his Complaint and IFP application. (ECF No. 3). As to the IFP application,

Plaintiff was directed to have the certificate of inmate accounts filled out and signed by an

authorized officer of the Crawford County Detention Center. (Id.). Plaintiff submitted an IFP

application on February 7, 2024. (ECF No. 6). The certificate of inmate account was left

completely blank. (Id. at 8). Subsequently, the Court entered two more Orders directing Plaintiff

to submit a completed IFP application or pay the filing fee. (ECF Nos. 7, 11). Plaintiff submitted

two more incomplete IFP applications. (ECF Nos. 9, 12). In his most recent application, Plaintiff

indicated he had sources of income other than pay or wages, but he failed to describe the source

and amount of that income as instructed on the form. (ECF No. 12 at 1). He also filled in the

certificate of account information himself rather than having it done by an authorized officer, and

the application was not signed by an authorized officer. (Id. at 3). Thus, Plaintiff has had four

opportunities to submit a completed IFP application or pay the filing fee, and he has failed to do

so each time.

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 three 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 Second Amended Complaint (ECF No. 10)

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 March 2024.

/s/

HON. MARK E. FORD

UNITED STATES MAGISTRATE JUDGE