stating that the district court possesses the power to dismiss sua sponte under Rule 41(b)
How later courts described this case
- stating that the district court possesses the power to dismiss sua sponte under Rule 41(b)
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
MATTHEW ALAN FERRY PLAINTIFF
v. Civil No. 5:24-cv-05034-TLB-CDC
LIEUTENANT TYLER ROSS, Benton County
Detention Center (BCDC); DEPUTY WHITE,
BCDC; and DEPUTY TRUJILLO, BCDC DEFENDANTS
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
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 an Order of the Court.
I. DISCUSSION
Plaintiff filed this action on February 8, 2024, pursuant to 42 U.S.C. §1983. He proceeds
pro se and in forma pauperis (“IFP”). Plaintiff was incarcerated in the Benton County Detention
Center (“BCDC”) at the time he filed his Complaint. (ECF No. 1 at 1).
When he filed this case, Plaintiff was specifically advised that he was required to
immediately inform the Court of any change of address. (ECF No. 3). If Plaintiff was
transferred or released, Plaintiff was told he must advise the Court of any change in his address
by no later than thirty (30) days from the time of his transfer to another facility or his release.
Additionally, Rule 5.5(c)(2) of the Local Rules for the Eastern and Western Districts of Arkansas
requires pro se parties to “promptly notify the Clerk and 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
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action diligently.”
On March 8, 2024, mail was returned as undeliverable from the BCDC marked “no longer
here.” (ECF No. 9). Plaintiff had thirty days, or until April 8, 2024, to provide the Court with
a new address. On March 11th and April 4th, mail was again returned to the Court from the
BCDC. (ECF Nos. 11 & 14).
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.
To date, Plaintiff has not provided a new address or contacted the Court in anyway. In
fact, the last thing filed by the Plaintiff in this case was his February 8, 2024, Complaint and IFP
application. (ECF Nos. 1 & 2). The Court has confirmed by review of the BCDC detainee
roster than Plaintiff is not incarcerated in that facility.1
II. CONCLUSION
For this reason, it is recommended that this case be DISMISSED WITHOUT
PREJUDICE pursuant to Rule 41(b) of the Federal Rules of Civil Procedure and Rule 5.5(c)(2)
of the Local Rules for the Eastern and Western Districts of Arkansas.
1 https://benton-so-ar.zuercherportal.com/#/inmates (accessed April 8, 2024).
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Status of Referral: The referral shall be terminated upon the filing of this Report
and Recommendation.
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.
RECOMMENDED this 11th day of April 2024.
s/ Christy Comstock
CHRISTY COMSTOCK
UNITED STATES MAGISTRATE JUDGE
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