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
FORT SMITH DIVISION
JEREMY LANE DYKES, SR. PLAINTIFF
v. Civil No. 2:24-cv-02058-TLB-MEF
JERRICA HENRY, 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 Timothy L. Brooks, 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 a Court Order and failure to prosecute this
case.
I. BACKGROUND
Plaintiff filed his Complaint on May 7, 2024. (ECF No. 1). He was granted in forma
pauperis status that same day. (ECF No. 3). In that Order, Plaintiff was advised that he must keep
the Court informed of his address or his case would be subject to dismissal. (Id.). On January 29,
2025, mail sent to Plaintiff in the Sebastian County Detention Center was returned as
undeliverable. (ECF No. 32). The deadline for Plaintiff to inform the Court of his new address
was set for February 28, 2025. (Id.). To date, Plaintiff has failed to inform the Court of his new
address.
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, therefore, 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 Complaint (ECF No. 1) be
DISMISSED WITHOUT PREJUDICE.
Referral Status: This case should not remain referred as all matters have been
recommended for dismissal in this Report and Recommendation.
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 12th day of March 2025.
/s/
HON. MARK E. FORD
UNITED STATES MAGISTRATE JUDGE