Lyman v. White et al

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
LARRY ALLEN LYMAN 	PLAINTIFF
v. 	Civil No. 5:24-cv-05229-TLB-CDC
DEPUTY WHITE, Benton County
Detention Center (BCDC); LIEUTENANT
TYLER ROSS, BCDC; NURSE TRACEY
ROBINSON; LPN KATERINE TAYLOR; and
JOHN DOE #1 	DEFENDANTS
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
This is a civil rights action filed by the Plaintiff pursuant to 42 U.S.C. § 1983. 	Pursuant
to the provisions of 28 U.S.C. §§ 636(b)(1) and (3), the Honorable Timothy L. Brooks, United
States District Judge, referred this case to the undersigned for the purpose of making a Report and
Recommendation. 	The case is before the Court on Plaintiff’s failure to obey the Court’s Orders.
I. 	DISCUSSION
Plaintiff filed this pro se civil rights action on November 7, 2024. 	(ECF No. 1). 	At the
time, Plaintiff was incarcerated. 	Id. 	His in forma pauperis (“IFP’) applications was incomplete
because he did not submit a certificate of account. 	(ECF No. 2). 	Plaintiff was given until
December 2, 2024, to submit the certificate of account or pay the filing fee. 	(ECF No. 3). 	He
was advised that failure to do so would result in the dismissal of the case. 	Id.
On November 18, 2024, Plaintiff filed a notice of change of address indicating he had been
released from incarceration and providing his new address. 	(ECF No. 5). 	In accordance with
this Court’s customary practice, an Order was entered giving Plaintiff until December 23, 2024, to
submit an application to proceed IFP reflecting his free world financial status or pay the filing fee.
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(ECF No. 7). 	The completed IFP or filing fee was due by December 23, 2024. 	Id. 	Plaintiff was
advised the case was subject to dismissal if he did not comply with the Order. 	Id.
On December 30, 2024, a Show Cause Order was entered. 	(ECF No. 9). 	Plaintiff was
given until January 21, 2025, to show cause why he had failed to comply with the Court’s Orders.
Id. 	He was further advised that “[i]f [he] fails to respond by this deadline, this case shall be subject
to dismissal.”
Plaintiff has not requested additional time to respond to the Courts’ Orders. 	No mail has
been returned as undeliverable. 	Plaintiff has failed to comply with the Court’s Orders. 	(ECF
Nos. 3, 7, & 9). 	In each Order, Plaintiff was advised that failure to respond would result in the
dismissal of the case. 	This case has been pending since November 7, 2024, without Plaintiff have
been granted leave to proceed IFP or paying the filing fee.
The Federal Rules of Civil Procedure specifically contemplate dismissal of a case on the
ground that the plaintiff failed to prosecute or failed to comply with an order of the court. 	Fed.
R. Civ. P. 41(b); Line 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).
Additionally, Rule 5.5(c)(2) of the Local Rules for the Eastern and Western Districts of Arkansas
requires parties appearing pro se to monitor the case, and to prosecute or defend the action
diligently.
II. 	CONCLUSION
For these reasons, it is recommended that pursuant to Rule 41(b), the case be DISMISSED
WITHOUT PREJUDICE based on Plaintiff’s failure to prosecute this case, his failure to obey
the orders of the Court, and his failure to comply with Local Rule 5.5(c)(2). 	Fed. R. Civ. P. 41(b).
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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.
Status of Referral: 	The referral terminates upon the filing of this Report and
Recommendation.
DATED this 31st day of January 2025.
s/ Christy Comstock
CHRISTY COMSTOCK
UNITED STATES MAGISTRATE JUDGE
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