United States District Court, W.D. Arkansas, Texarkana Division
BILLY RAY MCCAULEY, JR. PLAINTIFF
OFFICER TURNER; SGT. CATO; CPT. JOHNNY GODBOLT; LT. HEATH ROSS; and SHERIFF JAMES SINGLETON DEFENDANTS
BARRY A. BRYANT UNITED STATES MAGISTRATE JUDGE.
Billy Ray McCauley, Jr. proceeds in this action pro
se and in forma pauperis pursuant to 42 U.S.C.
§ 1983. The parties have consented to the jurisdiction
of a magistrate judge to conduct any and all proceedings in
this case, including conducting the trial, ordering the entry
of a final judgment, and conducting all post-judgment
proceedings. ECF No. 20. Currently before the Court is
Plaintiff's failure to prosecute this case and failure to
follow Court orders.
January 4, 2016, Plaintiff filed his Complaint in this
matter. ECF No. 1. In the Order granting in forma
paueris (“IFP”) status Plaintiff was advised
he was required to immediately inform the Court of any change
of address and further informed that failure to do could
result in dismissal of this case. ECF No. 3. On March 22,
2016, mail sent to Plaintiff at his address of record -
Hempstead County Detention Center, 312 South Washington
Street, Hope, Arkansas 71801 - was returned as undeliverable.
Based on research by the Court, Plaintiff's address was
changed to the Arkansas Department of Correction, Ouachita
River Unit, P.O. Box 1630, Malvern, Arkansas 72104. Again
Plaintiff was informed of his duty to notify the Court of any
change of address and that failure to notify the Court could
result in the dismissal of his claims.
November 16, 2016, a Final Scheduling Order was entered
setting a trial date for Monday, April 3, 2017. On November
29, 2016, Plaintiff filed a Motion for Settlement Conference
(ECF No. 24) which was denied on December 1, 2016. ECF No.
March 8, 2016, an Order was sent to Plaintiff directing him
to submit his list of witnesses and exhibits for trial to the
Court by Monday, March 20, 2017. ECF No. 32. Plaintiff did
not respond and the Order was not returned as undeliverable.
On March 29, 2017, the trial was reset for May 31, 2017. ECF
No. 34. On April 20, 2017, the trial was again reset for July
17, 2017. ECF No. 35. On June 26, 2017, the Court issued a
writ of habeas corpus to Plaintiff's address of
record at the ADC Ouachita River Unit ordering the Plaintiff
be brought to trial in Texarkana on July 17, 2017. None of
these Orders were returned as being undeliverable.
matter was called for trial just after 10:00 a.m. on Monday,
July 17, 2017. All Defendants were present with counsel ready
to proceed. Plaintiff did not appear. Court staff contacted
the ADC and were informed Plaintiff had been transferred to
the Arkansas Department of Community Corrections in January
of 2017. Plaintiff failed to inform the Court at any time of
this change of address.
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).
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
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” and such a
dismissal may be with prejudice if there has been
“‘a clear record of delay or contumacious conduct
by the ...