United States District Court, W.D. Arkansas, El Dorado Division
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
BARRY A. BRYANT UNITED STATES MAGISTRATE JUDGE
a civil rights action filed by Plaintiff Edgar Shepard
pursuant to 42 U.S.C. § 1983. 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
before the Court is Defendants' Motion to Dismiss. ECF
No. 12. After careful consideration, the Court makes the
following Report and Recommendation.
filed his Complaint on October 3, 2016 in the Eastern
District of Arkansas. ECF No. 2. On October 5, 2016, the case
was transferred to the Western District of Arkansas. ECF No.
3. On October 6, 2016, I granted Plaintiff's Motion to
Proceed in forma pauperis and ordered service on
Defendants. ECF No. 6. Defendants filed their Answer on
November 2, 106. ECF No. 10.
November 21, 2016, Defendants filed a Motion to Dismiss (ECF
No. 12) stating they have been unable to effect service of
correspondence and discovery requests upon Plaintiff.
Defendants served their Answer and discovery requests upon
Plaintiff on November 3, 2016, at his address of record:
Ouachita County Detention Center, 109 Goodgame Street,
Camden, AR 71701. The Answer and discovery requests were
returned to the office of the attorney for Defendants on
November 15, 2016, marked “Return to Sender” and
“Inmate No Longer Here.” ECF No. 14. Counsel for
Defendants then conducted a search on the Arkansas Department
of Correction inmate search site and found no listing for
Plaintiff. ECF No. 14.
on research by the Court, Plaintiff is now incarcerated in
the Arkansas Department of Correction - Cummins Unit, P.O.
Box 500, Grady, AR 71644-0500. On November 30, 2016, I issued
an Order to Show Cause to Plaintiff directing him to inform
the Court as to whether he intends to prosecute this case.
ECF No. 15. Plaintiff was given until December 30, 2016 to
respond to the Order to show cause. Plaintiff has not
notified the Court of any change of address, has failed to
respond to the Order to show cause, and has not communicated
with the Court since he filed his Complaint on October 3,
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
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
Local Rule 5.5(c)(2).
the Federal Rules of Civil Procedure also specifically
contemplate dismissal of a case 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.” 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).
has failed to keep the Court and Defendants advised of a
change in his address as required by Local Rule 5.5(c)(2). As
a result, Defendants have been unable to serve Plaintiff with
their Answer and discovery requests. In addition, Plaintiff
has failed to comply with the Court's Order to show
cause. Accordingly, pursuant to Federal Rule of Civil
Procedure 41(b) and Local Rule 5.5(c)(2) I recommend
Plaintiff's Complaint be dismissed without prejudice ...