# Malcevicz v. Montgomery

> District Court, W.D. Arkansas · March 24, 2025

URL: https://www.frixlaw.com/law-library/cases/10850232

## Case

- **Court:** District Court, W.D. Arkansas
- **Decided:** March 24, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION

DALE ANTHONY MALCEVICZ PLAINTIFF

v. Civil No. 3:25-cv-03010-TLB-CDC

SHERIFF JOHN MONTGOMERY,
Baxter County, Arkansas; and JAIL
ADMINISTRATOR TABITHA MAZE,
Baxter County Detention Center DEFENDANTS

REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
This is a civil rights action filed by the Plaintiff pursuant to 42 U.S.C. § 1983. Plaintiff
proceeds pro se. 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 Plaintiff’s
failure to obey the Court’s Orders.
I. DISCUSSION
Plaintiff filed his Complaint to initiate this action on February 6, 2025. (ECF No. 1).
That same day, an Order was entered advising Plaintiff his application to proceed in forma
pauperis was deficient because it did not contain a certificate of account. (ECF No. 3). Plaintiff
was given until February 25, 2025, to provide the certificate of account. He was advised that
failure to comply with the Order could result in the summary dismissal of the case.
Plaintiff failed to provide the certificate of account. To ensure procedural fairness, the
Court entered a Show Cause Order on February 27, 2025. (ECF No. 5). Plaintiff was given until
March 20, 2025, to show cause why he failed to obey the Order of the Court. Plaintiff was advised
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that if he failed to respond to the Show Cause Order, the case shall be subject to dismissal.
To date, Plaintiff has not submitted a certificate of account or responded to the Show Cause
Order. No mail has been returned as undeliverable. Plaintiff has failed to comply with the
Court’s Orders (ECF Nos. 3 & 5). Plaintiff was advised in each of the these Orders that failure

to comply would subject the case to dismissal.
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 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). 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.
II. CONCLUSION
For these reasons, it is recommended that, pursuant to Rule 41(b) of the Federal Rules of
Civil Procedure, this case be DISMISSED WITHOUT PREJUDICE based on Plaintiff’s failure
to prosecute this case; his failure to obey the orders of the Court; and his failure to comply with
Local Rule 5.5(c)(2).
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.
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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 March 2025.

s/ Christy Comstock
CHRISTY COMSTOCK
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10850232. Public record. Not legal advice.