Lyman v. Stamps

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FAYETTEVILLE DIVISION

LARRY ALLEN LYMAN PLAINTIFF

v. Civil No. 5:24-cv- 05194-TLB-CDC

CORPORAL DEREK STAMPS, Benton DEFENDANTS

County Detention Center (BCDC); NURSE

TRACEY ROBISON, Turn Key Health

Clinics, LLC; DEPUTY SIMMERMON,

BCDC; JOHN DOE DEPUTY #1, BCDC;

and DEPUTY ARHANGELSKY, BCDC

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 a Motion to Dismiss filed

by Separate Defendants Stamps, Simmermon, and Arhangelsky (hereinafter collectively referred

to as “the BCDC Defendants”). (ECF No. 25). The case is also before the Court on the Plaintiff’s

failure to obey the Orders of the Court.

I. DISCUSSION

On September 13, 2024, Plaintiff, Larry A. Lyman, filed this action 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”) when he filed his Complaint. (ECF No. 1). On

November 18, 2024, Plaintiff filed a notice of change of address to a private residence in Rogers,

Arkansas. (ECF No. 11).

On February 13, 2025, the BCDC Defendants filed a Motion to Dismiss. (ECF No. 25).

The BCDC Defendants state they have been unable to effect service of their correspondence on

the Plaintiff. Specifically, Defendants indicate that on January 24, 2025, they mailed Plaintiff

correspondence requesting that he respond to past due discovery requests originally propounded

to him on December 16, 2024, and December 19, 2024. The correspondence was sent to the

Rogers, Arkansas, address contained on the docket sheet. On February 5, 2025, the BCDC

Defendants received the correspondence back marked “return to sender and unable to forward.”

Because the Court had not received any returned mail, an Order was entered directing

Plaintiff to respond to the Motion to Dismiss by March 7, 2025. (ECF No. 28). Thereafter, the

Court received two pieces of returned mail on February 24, 2025, including the Order directing

Plaintiff to respond to the Motion to Dismiss. The first return envelope was marked “return to

sender—unable to forward.” (ECF No. 29). The second return envelope was marked “return to

sender—moved left no address—unable to forward.” (ECF No. 30).

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. 4). 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. Id.

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 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

action diligently.”

Since February 5, 2025, all mail sent by the BCDC Defendants, or the Court has been

returned as undeliverable. The last document filed by Plaintiff in this case was his notice of

change of address filed on November 18, 2024. (ECF No. 11).

II. CONCLUSION

For these reasons, it is recommended that Defendants’ Motion to Dismiss (ECF No. 25)

be GRANTED and 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.

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.

Status of Referral: The referral terminates upon the filing of this Report and

Recommendation.

RECOMMENDED this 11th day of March 2025.

s/ Christy Comstock

CHRISTY COMSTOCK

UNITED STATES MAGISTRATE JUDGE