# Herrington v. Thomas > District Court, W.D. Arkansas · April 26, 2024 URL: https://www.frixlaw.com/law-library/cases/10633020 ## Case - **Court:** District Court, W.D. Arkansas - **Decided:** April 26, 2024 - **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/10633020 ## 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 ROBERT LANE HERRINGTON PLAINTIFF v. Civil No. 6:23-CV-06134-SOH-CDC SHERIFF NEAL THOMAS, et. al. DEFENDANTS 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 obey Court Orders and failure to prosecute this case. I. BACKGROUND Plaintiff filed his Complaint on December 13, 2023. (ECF No. 1). He was granted in forma pauperis (“IFP”) status that same day. (ECF No. 3). In the Order granting IFP status, Plaintiff was advised that he must immediately inform the Court of any address changes or his case would be subject to dismissal. (Id.). The Court subsequently entered two Orders directing Plaintiff to submit an Amended Complaint to address deficiencies in his Complaint and Amended Complaint. (ECF Nos. 6, 10). The second Order was entered on February 13, 2024, and the deadline for Plaintiff to submit his Second Amended Complaint was March 12, 2024. (ECF No. 10). On March 14, 2024, the Second Order was returned undeliverable, marked unable to forward. (ECF No. 11). The deadline for Plaintiff to inform the Court of his new address was set for April 15, 2024. (Id.). To date, Plaintiff has not contacted the Court with his new address. He has not communicated with the Court since January 3, 2024. (ECF No. 8). 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 comply with a Court Order. 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 Amended Complaint (ECF No. 8) 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 26th day of April 2024. /s/ Christy Comstock HON. CHRISTY COMSTOCK UNITED STATES MAGISTRATE JUDGE --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10633020. Public record. Not legal advice.