Morehead v. Sholmes

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
WALTER VANCE MOREHEAD 	PLAINTIFF
v. 	Civil No. 1:24-cv-01098-SOH-SGS
NURSE STEPHANIE SHOLMES;
JOHNATHAN TUBBS; and CLARENCE CAPPS 	DEFENDANTS
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, Walter Vance Morehead 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. Pursuant to the
provisions of 28 U.S.C. § 636(b)(1) and (3)(2011), the Honorable Susan O. Hickey, United States
District Judge, referred this case to the undersigned for the purpose of making a Report and
Recommendation.
I. 	BACKGROUND
Plaintiff initially filed his Complaint on December 27, 2024, along with a Motion to
Proceed in forma pauperis (“IFP”). (ECF Nos. 1-2). The Court granted Plaintiff IFP status on the
same day. (ECF No. 3). In the Order granting IFP status, Plaintiff was specifically advised:
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 an Amended Complaint on February 3, 2025.
(ECF No. 8).
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Defendants filed a Motion to Dismiss on September 16, 2025. 	(ECF No. 27). 	In this
Motion, Defendants assert Plaintiff is no longer housed in the Ouachita County Detention Center—
his listed address of record on the docket in this matter. Id. On September 17, 2025, the Court
entered an Order directing Plaintiff to communicate with the Court and to notify the Court of any
address change. 	(ECF No. 29). 	Plaintiff’s response to the Order to Communicate was due on
October 8, 2025. Id. This Order was mailed to Plaintiff’s address of record at the Ouachita County
Detention Center, and it was returned, on September 29, 2025, as undeliverable mail marked: “No
longer at Facility.” (ECF No. 31).
The Court does not have an accurate address for Plaintiff and has not received
communication from him since receiving his Amended Complaint on February 3, 2025. (ECF No.
8).
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).
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
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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 involuntarily.
Id.
As evidenced by the docket, Plaintiff has failed to comply with the Court’s Order to keep
his address updated and he has failed to prosecute this matter. However, the Court does not find
dismissal with prejudice is warranted here. 	Accordingly, the Court recommends Plaintiff’s
Complaint be dismissed without prejudice for failure to comply with the Court’s Orders.
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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 Amended Complaint (ECF No. 8) 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 23rd day of December 2025.
/s/ Spencer G. Singleton
HON. SPENCER G. SINGLETON
UNITED STATES MAGISTRATE JUDGE
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