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Morrison v. Martin

United States District Court, W.D. Arkansas, Hot Springs Division

January 20, 2015

CLAYTON DEAN MORRISON, Plaintiff,
v.
SERGEANT AMY MARTIN; and JESSICA RASH, Defendants.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

MARK E. FORD, Magistrate Judge.

Plaintiff, Clayton Morrison, filed this case pro se pursuant to 42 U.S.C. § 1983 on May 7, 2014. Doc. 1. Now before the Court is Plaintiff's failure to comply with the Court's orders and prosecute this matter.

Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3)(2011), the Honorable Robert T. Dawson, United States District Judge, referred this case to the undersigned for the purpose of making a Report and Recommendation. After careful consideration, the undersigned makes the following Report and Recommendation.

I. BACKGROUND

At the time Plaintiff filed his Complaint, he was incarcerated in the Hot Springs County Jail in Malvern, Arkansas ("HSCJ"). On May 7, 2014, the Court entered an Order directing Plaintiff to file a completed application to proceed in forma pauperis ("IFP Application") and to file an amended complaint. Doc. 3. In this Order, Plaintiff was advised that failure to inform the Court of any address change may result in the dismissal of this case.

On June 12, 2014, the Court received mail sent to Plaintiff at the HSCJ returned as undeliverable. Upon the Court's own research, it was determined Plaintiff was transferred to the Bistate Justice Center in Texarkana, Texas ("Bistate Center"). On June 18, 2014, the Court ordered the Clerk to change Plaintiff's address of record to reflect his new address at the Bistate Center. Doc. 7. In this Order, the Court reminded Plaintiff it was his obligation to keep the Court apprised of his current address and that failure to do so could result in dismissal of this action. Doc. 7. Subsequent to this Order, the Court received a change of address notice from Plaintiff indicating his transfer to the Bistate Center. Doc. 8.

On September 10, 2014, the Court denied Plaintiff's IFP Application and directed he file a complete IFP Application by October 1, 2014. Doc. 9. This Order was mailed to Plaintiff's address of record at the Bistate Center. In this Order, Plaintiff was advised that failure to comply and return a completed IFP Application would subject this matter to dismissal. Doc. 9. On October 22, 2014, this Order was returned as undeliverable mail and marked "not here."

On October 28, 2014, the Court received a change of address notification from Plaintiff indicating he was transferred to the Federal Corrections Institution in Yazoo City, Mississippi ("Yazoo Facility"). The Court entered an order directing the Clerk to change Plaintiff's address of record to the Yazoo Facility and to resend the Court's September 10, 2014 Order directing Plaintiff to file a completed IFP Application. Doc. 11. This Order was not returned as undeliverable mail but Plaintiff failed to return a completed Motion for IFP.

On December 2, 2014, the Court entered an Order to Show Cause directing Plaintiff to show cause why he failed to comply with the Court's September 10, 2014 Order and file a completed IFP Application. Doc. 12. This Order to Show Cause was mailed to Plaintiff's address of record at the Yazoo Facility. On December 15, 2014, the Order to Show Cause was returned as undeliverable mail and marked address unknown.

Plaintiff has not communicated with the Court since October 2014 when he notified the Court that he was transferred to the Yazoo Facility.

II. APPLICABLE LAW

While 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). Local Rule 5.5(c)(2) states 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 ...

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