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
TEXARKANA DIVISION
JAVIER JORDAN PLAINTIFF
v. Civil No. 4:25-cv-04002-CDC
LT. KAREN GHORMLEY DEFENDANT
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This is a civil rights action filed under 42 U.S.C. § 1983. The case was directly assigned
to the undersigned Magistrate Judge pursuant to General Order 2024-02, but not all parties to the
action have consented to the jurisdiction of the undersigned. See 28 U.S.C. § 636(c). Accordingly,
the case will automatically be reassigned to Chief United States District Judge Susan O. Hickey
and referred to the undersigned for a report and recommendation pursuant to the provisions of 28
U.S.C. §§ 636(b)(1) and (3). Currently before the Court is Plaintiff’s failure to obey a Court Order
and the Local Rules of Civil Procedure. Also before the Court is Plaintiff’s failure to prosecute
this case.
I. BACKGROUND
Plaintiff filed his Complaint on January 21, 2025. (ECF No. 1). He was granted in forma
pauperis (IFP) status the same day. (ECF No. 3). In the Order granting IFP status, Plaintiff was
informed that he must inform the Court of any address change immediately, or his case would be
subject to dismissal. (Id.). On January 22, 2025, the Court entered an Order severing the case into
two cases1 and directing Plaintiff to submit an Amended Complaint addressing only the relevant
0F
claims in each case. (ECF No. 6).
1 This case and Jordan v. Ghormley, 4:25-cv-04005-CDC.
Plaintiff submitted an Amended Complaint on February 21, 2025. (ECF No. 7). On March
13, 2025, the Court entered an Order identifying deficiencies in the Amended Complaint, and
providing further explanation to Plaintiff as to what was required. (ECF No. 9). Plaintiff was
given until April 3, 2025, to submit his Second Amended Complaint. (Id.). This Order was not
returned as undeliverable.
When Plaintiff failed to submit his Second Amended Complaint, the Court entered a Show
Cause Order on April 11, 2025, directing Plaintiff to show cause for his failure by May 2, 2025.
(ECF No. 10). On May 1, 2025, the Show Cause Order was returned as undeliverable, indicating
no forwarding address was available. (ECF No. 11).
To date, Plaintiff has failed to submit his Second Amended Complaint and his current
mailing address. Nor has he otherwise communicated with the Court.
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. 7) be
DISMISSED WITHOUT PREJUDICE.
Referral Status: This case should not remain referred because all matters have been
recommended for dismissal in this Report and Recommendation.
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 5th day of May 2025.
/s/ Christy Comstock
HON. CHRISTY COMSTOCK
UNITED STATES MAGISTRATE JUDGE