Gibson v. Parsons

• Court: District Court, W.D. Arkansas
• Decided: August 23, 2022
• Docket: 6:22-cv-06020
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS HOT SPRINGS DIVISION

KENNY KEION GIBSON PLAINTIFF

v. Civil No. 6:22-CV-06020-SOH-BAB

DEPUTY DYLAN PARSONS, et. al. DEFENDANTS

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION This is a civil rights action filed pursuant to 42 U.S.C. § 1983. Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3), the Honorable Susan O. Hickey, Chief United States District Judge, referred this case to the undersigned for the purpose of making a Report and Recommendation. Currently before the Court is Plaintiff’s failure to obey a Court Order and failure to prosecute this case. I. BACKGROUND Plaintiff filed his Complaint on February 2, 2022. (ECF No. 1). In the Order granting him in forma pauperis (“IFP”) status, Plaintiff was advised that he must immediately inform the Court of any address change, or his case would be subject to dismissal. (ECF No. 4). On July 1 and July 18 of 2022, Defendants informed the Court that mail sent to Plaintiff in the Garland County Detention Center had been returned, indicating that he was no longer incarcerated in that facility. (ECF Nos. 16, 17). On July 19, 2022, the Court entered an Order directing Plaintiff to provide the Court with notice of his current address no later than August 3, 2022. (ECF No. 18). This Order was returned as undeliverable. To date, Plaintiff has failed to provide the Court with his current address, and has not 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 Complaint (ECF No. 1) be DISMISSED WITHOUT PREJUDICE. 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 23rd day of August 2022. /s/ Barry A. Bryant HON. BARRY A. BRYANT UNITED STATES MAGISTRATE JUDGE