McAbee v. Atchley et al

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
JUSTIN MATHIS MCABEE 	PLAINTIFF
v. 	Civil No. 5:24-cv-05173-CDC-TLB
LIEUTENANT BRIAN ATCHLEY,
Washington County Detention Center (WCDC);
and DETECTIVE/CORPORAL TOM
MULVANEY, 	WCDC 	DEFENDANTS
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
Plaintiff, Justin M. McAbee (“McAbee”), filed this civil rights action pursuant to 42 U.S.C.
§ 1983. 	He proceeds pro se and in forma pauperis.
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 	McAbee’s 	claims, 	this 	document 	will 	be 	filed 	as 	a 	Report 	and
Recommendation and the case will automatically be reassigned to United States District Judge
Timothy L. Brooks. 	28 U.S.C. § 636(c); Rule 73 of the Federal Rules of Civil Procedure, and
General Order 2024-02.
The case is before the Court on the Plaintiff’s failure to obey an Order of the Court.
I. 	DISCUSSION
When he filed this case, McAbee was specifically advised that he was required to
immediately inform the Court of any change of address. 	(ECF No. 3). 	If McAbee was
transferred or released, he was told he must advise the Court of any change in his address by no
later than thirty (30) days from the time of his transfer to another facility or his release.
Additionally, Rule 5.5(c)(2) of the Local Rules for the Eastern and Western Districts of Arkansas
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requires pro se parties to “promptly notify the Clerk and 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.”
McAbee was incarcerated in the Washington County Detention Center (“WCDC”) when
he filed this case. 	(ECF No. 1). 	On August 22, 2024, the Court directed service on the
Defendants. 	(ECF No. 8). 	On October 7, 2024, Defendants filed their answer. 	(ECF No. 11).
The following day, a Bench Order was entered advising Defendants that if they wished to pursue
a defense of failure to exhaust administrative grievances they must do so by December 9, 2024.
(ECF No. 12).
On October 16, 2024, mail was returned to the Court as undeliverable with a notation that
McAbee was no longer in the WCDC. 	(ECF No. 14). 	McAbee had thirty days or until
November 15, 2024, to submit a new address. 	Mail was also returned as undeliverable on
October 22, 2024, and November 6, 2024. 	(ECF Nos. 16 & 19). 	On October 29, 2024, the
Bench Order was stayed until McAbee provided his new address. 	(ECF No. 18).
To date, McAbee has not provided a new address or contacted the Court in anyway. 	In
fact, the last thing filed by the McAbee in this case was his Motion to Proceed IFP filed on August
21, 2024, when he was still incarcerated in the WCDC. 	(ECF No. 5).
II. 	CONCLUSION
For this reason, it is recommended that this case be DISMISSED WITHOUT
PREJUDICE pursuant to Rule 41(b) of the Federal Rules of Civil Procedure and Rule 5.5(c)(2)
of the Local Rules for the Eastern and Western Districts of Arkansas.
The parties have fourteen days from receipt of the Report and Recommendation in
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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.
Status of Referral: 	The referral terminated upon the filing of this Report and
Recommendation.
RECOMMENDED this 25th day of November 2024.
s/ Christy Comstock
CHRISTY COMSTOCK
UNITED STATES MAGISTRATE JUDGE
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