Smith v. Reynolds et al

1
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
RICHARD ALLEN SMITH 	PLAINTIFF
v. 	Civil No. 4:24-cv-04120-BAB
ERNEST JACK REYNOLDS; ERNEST JACK, JR;
CAROL REYNOLDS;KRISTIE REYNOLDS;
KATHIE REYNOLDS; KATIE REYNOLDS;
RONDA REYNOLDS; JAMES REYNOLDS;
MITCHELLE REYNOLDS; DEBBIE REYNOLDS;
MEAGAN REYNOLDS; MISTY REYNOLDS;
GREGG REYNOLDS; MICKIE REYNOLDS;
CHERRIE REYNOLDS; MACKEY REYNOLDS;
MICHAEL REYNOLDS; JJOHN REYNOLDS;
DAVID REYNODLS; SHAWN; and SHANNONH REYNOLDS 	DEFENDANTS
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, Richard Allen Smith, filed this action pro se and in forma pauperis pursuant to
42 U.S.C. § 1983. Currently before the Court is Plaintiff’s failure to prosecute
The case was directly assigned to the undersigned Magistrate Judge. 	However, because
not all parties to the action have consented to the jurisdiction of the undersigned, and this document
will 	be 	dispositive 	of 	Plaintiff’s 	claims, 	this 	document 	will 	be 	filed 	as 	a 	Report 	and
Recommendation and the case will automatically be reassigned to Chief United States District
Judge Susan O. Hickey. 28 U.S.C. § 636(c); Rule 73 of the Federal Rules of Civil Procedure, and
General Order 2024-02.
Case 4:24-cv-04120-SOH Document 7 Filed 04/04/25 Page 1 of 4 PageID #:
<pageID>

2
I. 	BACKGROUND
Plaintiff originally submitted this 42 U.S.C. 1983 action pro se on December 5, 2024 along
with an application to proceed in forma pauperis (“IFP Application”). (ECF Nos. 1-2). The Court
then ordered Plaintiff to either pay his filing fee or submit a new IFP Application because he failed
to properly complete all of the questions in his first Application. 	(ECF No. 4). 	Plaintiff’s
completed IFP Application was due on February 14, 2025. Id. This Order was mailed to Plaintiff’s
address of record and not returned as undeliverable. Plaintiff failed to respond.
On February 18, 2025, the Court entered an Order to Show Cause directing Plaintiff to
show cause why he failed to respond with the completed IFP Application pursuant to the Court’s
January 24, 2025 Order. (ECF No. 6). This Order to Show Cause was mailed to Plaintiff’s address
of record and was not returned as undeliverable mail. Plaintiff’s response was due on March 11,
2025. Id. Plaintiff failed to respond.
Plaintiff has not communicated with the Court since originally filing his Complaint in
December 2024.
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). 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).
Case 4:24-cv-04120-SOH Document 7 Filed 04/04/25 Page 2 of 4 PageID #:
<pageID>

3
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. C IV. 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).
Furthermore, a dismissal pursuant to Rule 41(b) operates as an adjudication on the merits
unless it is otherwise specified. FED. R. C IV. P. 41(b); Brown, 806 F.2d at 803. In considering a
Rule 41(b) dismissal, the Court must balance: (1) “the degree of [Plaintiff’s] egregious conduct;”
(2) the adverse impact of the conduct on the Defendants; and (3) the Court’s ability to administer
justice. 	Rodgers v. Curators of University of Missouri, 135 F.3d 1216, 1219 (8th Cir. 1998)
(internal quotations omitted). In Rodgers, the Eighth Circuit provides the standard the Court must
consider before dismissing with prejudice for failure to prosecute:
Dismissal with prejudice is an extreme sanction and should be used only in cases of willful
disobedience of a court order or . . . persistent failure to prosecute a complaint. [The Court
must consider] . . . whether in the particular circumstances of the case, the needs of the
court in advancing a crowded docket and preserving respect for the integrity of its internal
procedures are sufficient to justify the harsh consequences of forever denying a litigant of
his day in court. 	However, the [Court] need not [find] that appellant acted in bad faith,
only that he acted intentionally as opposed to accidentally or involuntarily.
Id.
As evidenced by the docket, Plaintiff has completely failed to prosecute this case and
comply with the Court’s Orders to pay his filing fee or respond with his completed IFP
Application. However, the Court does not find dismissal with prejudice is warranted here.
Case 4:24-cv-04120-SOH Document 7 Filed 04/04/25 Page 3 of 4 PageID #:
<pageID>

4
III. 	CONCLUSION
Therefore, pursuant to Federal Rule of Civil Procedure 41(b) and Local Rule 5.5(c)(2), the
Court hereby recommends Plaintiff’s Complaint (ECF No. 1) be DISMISSED WITHOUT
PREJUDICE.
STATUS REFERRAL: Referral should be terminated.
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 4th day of March 2025.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE
Case 4:24-cv-04120-SOH Document 7 Filed 04/04/25 Page 4 of 4 PageID #:
<pageID>