The opinion
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
KENNETH WAYNE CROSS, JR. PLAINTIFF
v. Civil No. 4:24-cv-04123-SOH-BAB
LT ALICE MILLER; CAPTAIN GOLDEN
ADAMS; WARDEN JEFFIE WALKER;
OFFICER LEHUAN; and OFFICER SPALDING DEFENDANTS
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Before the Court is Plaintiff’s failure to prosecute. Pursuant to the provisions of 28 U.S.C.
§ 636(b)(1) and (3)(2011), 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.
I. BACKGROUND
Plaintiff, Kenneth Wayne Cross, Jr. originally submitted this 42 U.S.C. 1983 action pro se
on December 10, 2024 along with an application to proceed in forma pauperis (“IFP Application”).
(ECF Nos. 1-2). The Court granted Plaintiff’s IFP Application on the same day. (ECF No. 3). In
this Order, Plaintiff was specifically advised:
Plaintiff is advised that he is required to immediately inform the Court of any change of
address. If Plaintiff is transferred to another jail or prison or released, he shall have
30 days from the date of transfer or release in which to notify the Court of his new
address . . . Failure to inform the Court of an address change shall result in the
dismissal of this case.
(ECF No. 3) (emphasis in original). In this same Order, the Court directed Plaintiff to file an
amended complaint by December 31, 2024. Id. This Order was not returned as undeliverable
mail, and Plaintiff failed to respond.
On January 10, 2025, the Court entered an Order to Show Cause directing Plaintiff to show
cause as to why he failed to submit an amended complaint. Plaintiff’s response was due January
31, 2025. (ECF No. 7). This Order was not returned as undeliverable mail and Plaintiff failed to
respond.
On January 14, 2025, Plaintiff submitted a Notice of Change of Address indicating he was
transferred. The Clerk of Court changed his address of record and resent the Order to Show Cause
to his new address on the same day. (ECF No. 8). This second mailing was not returned as
undeliverable mail, and Plaintiff never responded.
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). 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 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).
Furthermore, a dismissal pursuant to Rule 41(b) operates as an adjudication on the merits
unless it is otherwise specified. Fed. R. Civ. P. 41(b); Brown, 806 F.2d at 803. In considering a
Rule 41(b) dismissal, the Court must balance: (1) “the degree of [Plaintiff’s] egregious conduct;”
(2) the adverse impact of the conduct on the Defendants; and (3) the Court’s ability to administer
justice. Rodgers v. Curators of University of Missouri, 135 F.3d 1216, 1219 (8th Cir. 1998)
(internal quotations omitted). In Rodgers, the Eighth Circuit provides the standard the Court must
consider before dismissing with prejudice for failure to prosecute:
Dismissal with prejudice is an extreme sanction and should be used only in cases of willful
disobedience of a court order or . . . persistent failure to prosecute a complaint. [The Court
must consider] . . . whether in the particular circumstances of the case, the needs of the
court in advancing a crowded docket and preserving respect for the integrity of its internal
procedures are sufficient to justify the harsh consequences of forever denying a litigant of
his day in court. However, the [Court] need not [find] that appellant acted in bad faith,
only that he acted intentionally as opposed to accidentally or involuntarily.
Id.
As evidenced by the docket, Plaintiff has failed to prosecute this case and comply with the
Court’s Orders. Plaintiff failed to respond to the Court’s orders and amend his Complaint.
However, the Court does not find dismissal with prejudice is warranted here.
III. CONCLUSION
Therefore, pursuant to Federal Rule of Civil Procedure 41(b) and Local Rule 5.5(c)(2), the
Court hereby recommends Plaintiff’s Complaint (ECF No. 1) be DISMISSED WITHOUT
PREJUDICE.
REFERRAL STATUS: The referral in this case shall be terminated.
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 24th day of February 2025.
Barry A. Bryant
/s/
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE