Pedigo v. Leman et al

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
DAVID EDMOND PEDIGO 	PLAINTIFF
v. 	Civil No. 4:23-cv-04115-SOH-BAB
CORRECTIONAL OFFICER LEMAN;
CORRECTIONAL OFFICER SHINE;
CORRECTIONAL OFFICER SMITH;
CORRECTIONAL OFFICER FRAZIER;
CORRECTIONAL OFFICER AKINSON;
CORRECTIONAL OFFICER YELEY; and
CORRECTIONAL OFFICER GUTHRIE 	DEFENDANTS
REPORT AND RECOMMENDATION
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. Before the Court is Defendants’ Motion to Dismiss.
(ECF No. 35). Plaintiff has not responded and the time to do so has passed.
I. 	BACKGROUND
Plaintiff David Edmond Pedigo filed this 42 U.S.C. § 1983 action pro se on December 5,
2023. 	(ECF No. 1). 	The Court granted Plaintiff in forma pauperis status on January 29, 2024.
(ECF No. 10). Plaintiff then filed an Amended Complaint, pursuant to the Court’s Order to do so,
on March 8, 2024. (ECF Nos. 12-13).
In the Court’s initial filing Order, Plaintiff was advised he must keep the Court apprised of
his current address. (ECF No. 3). Specifically:
Plaintiff is advised that he is required to immediately inform he Court of any change of
address. If Plaintiff is transferred to another jail or prison or released, he shall have
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30 days from the date of transfer or release in which to notify the Court of his new
address . . . Failure to inform the Court of an address change shall result in the
dismissal of this case.
(ECF No. 3). Plaintiff was again advised of his obligation to keep the Court informed of his current
address when he was granted in forma pauperis status on January 29, 2024. (ECF No. 10). Again,
the Court specifically stated his case would be subject to dismissal if Plaintiff did not inform the
Court of any address changes within thirty (30) days of the move. Id.
Plaintiff was original incarcerated in Miller County Detention Center when he filed his
original Complaint. (ECF No. 1). The Court received Plaintiff’s change of address to the River
Ridge Treatment Center on June 12, 2024. 	(ECF No. 22). 	Multiple mailings were sent
successfully to Plaintiff at this address. Then on August 6, 2024, the Court received mail sent to
Plaintiff at the River Ridge Treatment Center returned as undeliverable mail. 	(ECF No. 33).
Plaintiff’s new address was due by September 3, 2024. Id. Plaintiff did not send the Court any
notification of release or new address.
Defendants filed their Motion to Dismiss on September 12, 2024. (ECF No. 35). In this
Motion, they argue Plaintiff’s claims should be dismissed for failure to comply with the Local
Rules and to keep the Court informed of his current address. (ECF Nos. 35-37). Plaintiff did not
respond to Defendants’ Motion, and he has not communicated with the Court since June 27, 2024.
(ECF No. 26).
II. 	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). 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
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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 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).
Here Plaintiff has failed to comply with the Court’s initial filing order and the order
granting in forma pauperis status, (ECF Nos. 3, 10), and he failed to keep the Court informed of
his current address.
III. 	CONCLUSION
Therefore, pursuant to Federal Rule of Civil Procedure 41(b) and Local Rule 5.5(c)(2), it
is recommended Defendants’ Motion to Dismiss (ECF No. 35) be GRANTED and Plaintiff’s
Amended Complaint (ECF No. 13) be DISMISSED WITHOUT PREJUDICE.
REFERAL STATUS: The referral in this matter should be terminated.
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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.
DATED this 19th day of November 2024.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE
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