Tilson v. Tubbs et al

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
DIANE TILSON 	PLAINTIFF
v. 	Civil No. 1:24-CV-01074-SOH-BAB
JOHNATHAN TUBBS, Supervisor;
PAYTON POTTER, Shift Supervisor;
NURSE AMY; NURSE STEPHANIE; and CLARENCE CAPPS, 	DEFENDANTS
REPORT AND RECOMMENDATION OF A MAGISTRATE JUDGE
Plaintiff Diane Tilson initiated the above-captioned pro se civil rights action pursuant to
42 U.S.C. § 1983 when she was a pretrial detainee at the Ouachita County Detention Center
(“OCDC”). 	(ECF No. 1). 	The case was directly assigned to the undersigned Magistrate Judge
pursuant to General Order 2024-02. 	But not all parties to the action have consented to the
jurisdiction of the undersigned. See 28 U.S.C. § 636(c). Accordingly, the case will automatically
be reassigned to Chief United States District Judge Susan O. Hickey and referred to the
undersigned for a report and recommendation pursuant to the provisions of 28 U.S.C. § § 636(b)(1)
and (3). Before the Court is Plaintiff’s failure to comply with court orders and failure to prosecute
this case.
BACKGROUND
Plaintiff initiated this action in the Eastern District of Arkansas. 	(ECF No. 1). 	Later,
United States Magistrate Judge Edie R. Ervin of the Eastern District of Arkansas ordered that this
matter be transferred to this District pursuant to 28 U.S.C. § 1406(a). (ECF No. 2). Upon transfer,
this Court ordered that Plaintiff submit an amended complaint on the court’s approved § 1983 form
by November 13, 2024. (ECF No. 6). This Court also ordered Plaintiff to either submit a complete
in forma paupers (“IFP”) application or pay the statutory filing fee of $405 by November 13, 2024.
(ECF No. 7). Those orders cautioned Plaintiff that if she failed to comply, this matter would be
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subject to dismissal. (ECF Nos. 6, 7). The orders were not returned as undeliverable.
On November 5, 2024, Plaintiff filed an Amended Complaint. (ECF No. 8). Plaintiff also
submitted an IFP application. 	(ECF No. 9). 	The IFP application, however, was incomplete
because it did not include a certified copy of her trust fund account statement (or the institutional
equivalent) as required by law, see 28 U.S.C. § 1915(a)(2). (ECF No. 9). Plaintiff explained in
her IFP application that she did not include the required form because officials refused to complete
it on her behalf. 	Id. 	Accordingly, on November 7, 2024, this Court ordered Ouachita County
Sheriff David Norwood to assist Plaintiff in completing the required form. (ECF No. 10). This
Court also ordered that the completed IFP application be returned by no later than November 27,
2024. Id. This Order was mailed to Sheriff Norwood certified mail, return receipt requested. Id.
On November 18, 2024, Plaintiff’s mail was returned to sender as “not deliverable as
addressed.” (ECF No. 12). The envelope included the notation, “Return to Sender, not at OCSO.”
Id. On November 19, 2024, Ouachita County Sheriff Norwood filed a response to the November
7, 2024, Order saying that Plaintiff was no longer in the custody of the Ouachita County Sheriff
but was rather in the custody of the Arkansas Department of Corrections. 	(ECF No. 13). 	On
December 6, 2024, additional mail addressed to Plaintiff was returned to sender, “unable to
forward,” with the notation, “no longer at this facility.” (ECF No. 14).
As of January 27, 2025, a search for Plaintiff in the Arkansas Department of Corrections
“Inmate Search” yields zero results. 	See Inmate Search, Arkansas Department of Corrections,
https://apps.ark.org/inmate_info/index.php (last accessed Jan. 27, 2025). For her part, Plaintiff has
not advised the Court of any change of address and has not communicated with the Court in any
way in over two months, or since November 5, 2024, when she filed the Amended Complaint and
incomplete IFP application.
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DISCUSSION
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).
Further, pursuant to Federal Rule of Civil Procedure 41(b), the district court has discretion
to dismiss an action for “failure to prosecute, or to comply with the Federal Rules of Civil
Procedure or any court order.” See Fed. R. Civ. P. 41(b); Henderson v. Renaissance Grand Hotel,
267 F. App’x 496, 497 (8th Cir. 2008) (per curiam).
Here, more than 30 days have elapsed since Plaintiff’s mail was returned as undeliverable
and Plaintiff has failed to update the Court with her current address. 	Further, Plaintiff was
previously cautioned that failure to submit a complete IFP application or to pay the full statutory
filing fee would subject this matter to dismissal for failure to prosecute. (ECF No. 7). Plaintiff
has done neither, the deadline for submitting the complete IFP application has elapsed, her
whereabouts are currently unknown, and she has not communicated with the court in over two
months. Plaintiff, therefore, has failed to comply with court orders and has failed to prosecute this
action.
CONCLUSION
For the reasons discussed above, it is recommended that Plaintiff’s Amended Complaint
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(ECF No. 8) be DISMISSED WITHOUT PREJUDICE for failure to prosecute and failure to
comply with court orders.
The parties have fourteen (14) 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.
STATUS OF REFERRAL: NO LONGER REFERRED
DATED this 27th day of January 2025.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE
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