Ford v. McCormick et al

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
DEMARIAN TYRELL FORD 	PLAINTIFF
v. 	Civil No. 6:23-cv-06119-SOH-BAB
SHERIFF MIKE McCORMICK, et. al. 	DEFENDANTS
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This is a civil rights action filed pursuant to 42 U.S.C. § 1983. Pursuant to the provisions
of 28 U.S.C. § 636(b)(1) and (3), the Honorable Susan O. Hickey, Chief United States District
Judge, 	referred 	this 	case 	to 	the 	undersigned 	for 	the 	purpose 	of 	making 	a 	Report 	and
Recommendation. Currently before the Court is Plaintiff’s failure to obey Court Orders and failure
to prosecute this case.
I. BACKGROUND
Plaintiff filed his Complaint on November 17, 2023. 	(ECF No. 1). 	That same day, the
Court entered an Order provisionally filing his case and directing Plaintiff to submit an in forma
pauperis (“IFP”) application and an Amended Complaint. 	(ECF No. 2). 	This Order advised
Plaintiff that he must immediately inform the Court of any address change or his case would be
subject to dismissal. (Id.). Plaintiff submitted a completed IFP application on November 29, 2023.
(ECF No. 6). In the Order granting Plaintiff IFP status, Plaintiff was again advised that he must
immediately inform the Court of any address change or his case would be subject to dismissal.
(ECF No. 7).
On May 15, 2024, Defendants submitted a Joint Motion for Summary Judgment for Failure
to Exhaust Administrative Remedies. 	(ECF No. 25). 	On May 16, 2024, the Court entered an
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Order directing Plaintiff to submit his Summary Judgment Response. 	(ECF No. 28). 	When
Plaintiff failed to do so, the Court entered a Show Cause Order on July 1, 2024. (ECF No. 29).
Plaintiff entered a Response on July 11, 2024. (ECF No. 30).
On October 21, 2024, Defendants King, McCormick, and Ware entered a Motion to
Dismiss Pursuant to Local Rule 5.5(c)(2). (ECF No. 35). As grounds, they state they have been
unable to effect service of correspondence upon Plaintiff, and Plaintiff is, therefore, not in
compliance with Rule 5.5(c)(2). (Id.). The affidavit of attempted service indicates mail was sent
to Plaintiff on October 1, 2024. (ECF No. 37 at 1). This mail was returned on October 15, 2024,
marked “Return to Sender – Not Here.” (Id.).
On October 23, 2024, the Court entered an Order directing Plaintiff to communicate with
the Court. (ECF No. 38). This Order was returned as undeliverable on November 4, 2024, marked
“Return to Sender – Not Here.” (Id.). To date, Plaintiff has failed to inform the Court of his new
address, and has not otherwise communicated with the Court.
II. LEGAL STANDARD
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
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court. Fed. R. Civ. P. 41(b); Link 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).
III. ANALYSIS
Plaintiff has failed to keep the Court apprised of his current address as required by Local
Rule 5.5(c)(2). 	Plaintiff has failed to comply with two Court Orders. 	Plaintiff has failed to
prosecute this matter. Accordingly, pursuant to Federal Rule of Civil Procedure 41(b) and Local
Rule 5.5(c)(2) Plaintiff’s Complaint should be dismissed without prejudice for failure to comply
with the Court’s Local Rules and Orders and failure to prosecute this case.
IV. CONCLUSION
Accordingly, it is recommended that Plaintiff Amended Complaint (ECF No. 10) be
DISMISSED WITHOUT PREJUDICE.
Referral Status: This case should not remain referred because all matters have been
recommended for dismissal in this Report and Recommendation.
The parties have fourteen 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 7th day of November 2024.
/s/ 	Barry A. Bryant
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE
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