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Worth v. Greer

United States District Court, W.D. Arkansas, El Dorado Division

January 27, 2015

TERRANCE DALE WORTH, Plaintiff,
v.
LT. JAMES GREER; and WHITNEY FOSTER, Defendants.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

BARRY A. BRYANT, Magistrate Judge.

Plaintiff Terrance Worth filed this case pro se pursuant to 42 U.S.C. § 1983 on May 9, 2013. ECF No. 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 Susan O. Hickey, 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 Union County Detention Center in El Dorado, Arkansas ("UCDC"). On May 9, 2013, the Court entered an Order directing Plaintiff's Complaint be filed and granting his application to proceed in forma pauperis in this matter. ECF No. 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 May 17, 2013, the Court received Plaintiff's file marked copy of the May 9, 2013 Order returned as undeliverable and marked "Released." On May 22, 2013, upon its own research, the Court located Plaintiff's home address provided to the UCDC when he was booked. The Court changed Plaintiff's address of record to this home address. The Court also resent the May 9, 2013 Order to this home address. The Court did not receive any of this mail sent to Plaintiff's home address returned as undeliverable.

On November 5, 2013, Defendants filed a Notice of Returned Mail. ECF No. 11. In this Notice, Defendants state they sent Plaintiff discovery requests to his home address on September 20, 2013. The mailing was returned noting the Plaintiff "moved left no address unable to forward." ECF No. 11.

On May 9, 2014, Defendants filed a Motion to Dismiss based on Plaintiff's failure to keep the Court and Defendants informed of his current address. Plaintiff did not respond. Further, Plaintiff has not communicated with the Court since initially filing his Complaint in May 2013.

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 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 also specifically contemplate dismissal of a case with prejudice on the grounds 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) (the district court possess 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, " and such a dismissal may be with prejudice if there has been "a clear record of delay or contumacious conduct by the plaintiff.'" Brown v. Frey, 806 F.2d 801, 803-04 (8th Cir. 1986) (quoting Haley v. Kansas City Star, 761 F.2d 489, 491 (8th Cir. 1985)) (emphasis added). Dismissal with prejudice is an extreme sanction, and only to be used in cases of "willful disobedience of a court order" or "where a litigant exhibits a pattern of intentional dely." Hunt v. City of Minneapolis, 203 F.3d 524, 527 ...


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