Bowen v. Baker et al

1
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
CARL A. BOWEN 	PLAINTIFF
v. 	Civil No. 1:24-cv-01075-MEF
JUDGE BAKER; JUDGE SINGLETON;
CAPTAIN LISA WORLEY;
DISTRICT ATTORNEY JEFFREY ROGERS;
and LIEUTENANT RUSSELL 	DEFENDANTS
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, Carl A. Bowen, filed this action pro se and in forma pauperis pursuant to 42
U.S.C. § 1983. 	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. Currently before the Court is Plaintiff’s failure to prosecute this action.
I. 	BACKGROUND
Plaintiff originally filed this 42 U.S.C. § 1983 action pro se on November 1, 2024, along
with an application to proceed in forma pauperis (“IFP Application”). (ECF Nos. 1-2). Plaintiff’s
IFP Application was incomplete, however, and his Complaint was insufficient. Accordingly, the
Court ordered Plaintiff to submit a completed IFP Application and Amended Complaint by
November 22, 2024. (ECF No. 3). In this Order, Plaintiff was specifically advised:
Plaintiff is advised that he is required to immediately inform the
Case 1:24-cv-01075-SOH Document 13 Filed 03/10/25 Page 1 of 4 PageID #:
<pageID>

2
Court of any change of address. 	If Plaintiff is transferred to
another jail or prison or released, he shall have 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) (emphasis in original).
Plaintiff filed both his Amended Complaint (ECF No. 5) and completed IFP Application
(ECF Nos. 6-7). Plaintiff’s IFP Application was granted on November 19, 2024. (ECF No. 8).
Upon review of Plaintiff’s Amended Complaint, the Court determined Plaintiff’s claims
were unrelated and must be severed pursuant to Federal Rule of Civil Procedure 20(a)(2). (ECF
No. 11). Plaintiff was ordered to file a Second Amended Complaint in this case including only
those claims remaining after the unrelated claims were severed out. 	This Second Amended
Complaint was due January 2, 2025. Id. Plaintiff was advised that failure to submit this Second
Amended Complaint would subject this matter to dismissal. Id. This Order was not returned as
undeliverable mail and Plaintiff failed to submit the ordered Second Amended Complaint.
On January 3, 2025, the Court entered an Order to Show Cause directing Plaintiff to show
cause why he failed to comply with the Court’s Severance Order and file a Second Amended
Complaint. (ECF No. 12). This Order to Show Cause was not returned as undeliverable mail and
Plaintiff failed to respond.
The Court has not received any communication from Plaintiff since November 18, 2024,
when Plaintiff filed his completed IFP Application.
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:
Case 1:24-cv-01075-SOH Document 13 Filed 03/10/25 Page 2 of 4 PageID #:
<pageID>

3
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 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. Civ. 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
Case 1:24-cv-01075-SOH Document 13 Filed 03/10/25 Page 3 of 4 PageID #:
<pageID>

4
involuntarily.
Id.
As evidenced by the docket, Plaintiff has failed to prosecute this case and comply with the
Court’s Orders, but the Court does not find dismissal with prejudice is warranted here.
III. 	CONCLUSION
For these reasons, pursuant to Federal Rule of Civil Procedure 41(b) and Local Rule
5.5(c)(2), the Court hereby RECOMMENDS that Plaintiff’s Amended Complaint (ECF No. 5) be
DISMISSED WITHOUT PREJUDICE.
REFERRAL STATUS: The referral in this case shall 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 10th day of March 2025.
/s/
Mark E. Ford
HON. MARK E. FORD
UNITED STATES MAGISTRATE JUDGE
Case 1:24-cv-01075-SOH Document 13 Filed 03/10/25 Page 4 of 4 PageID #:
<pageID>