Preskitt v. Butler

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
CODY ALLEN PRESKITT 	PLAINTIFF
v. 	Civil No. 4:24-cv-04069-SOH-CDC
JAIL ADMINISTRATOR GINA BUTLER 	DEFENDANTS
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Before the Court is Defendant’s Motion to Dismiss for Failure to Prosecute. (ECF No. 13).
Plaintiff has not responded and his time to do so has passed. 	Pursuant to the provisions of 28
U.S.C. § 636(b)(1) and (3)(2011), the Honorable Susan O. Hickey, Chief United States District
Judge, referred the instant motion to the undersigned for the purpose of making a Report and
Recommendation.
I. BACKGROUND
Plaintiff, Cody Allen Preskitt, originally submitted this 42 U.S.C. 1983 action pro se on
July 2, 2024, along with an application to proceed in forma pauperis (“IFP Application”). (ECF
Nos. 1-2). The Court granted Plaintiff’s IFP Application on the same day. (ECF No. 3). In this
Order, Plaintiff was specifically advised:
Plaintiff is advised that he is required to immediately inform the 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).
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On August 22, 2024, mail sent to Plaintiff by the Court, at his address of record, was
returned as undeliverable mail. 	(ECF No. 8). 	Plaintiff was provided thirty days to inform the
Court of his new address pursuant to the Court’s July 2, 2024 Order. Plaintiff failed to respond
with his new address, and Plaintiff has not communicated with the Court since initially filing his
Complaint.
On October 22, 2024, Defendant filed the instant Motion to Dismiss arguing Plaintiff has
not complied with the Locals Rules and has failed to prosecute this matter. 	(ECF Nos. 13-15).
Plaintiff did not respond.
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
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).
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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 completely failed to prosecute this case and
comply with the Court’s Orders. Plaintiff failed to keep the Court informed of his current address
as ordered, and he failed to defend against Defendant’s Motion to Dismiss. However, the Court
does not find dismissal with prejudice is warranted here.
III. CONCLUSION
Therefore, pursuant to Federal Rule of Civil Procedure 41(b) and Local Rule 5.5(c)(2), the
Court hereby recommends Defendant’s Motion to Dismiss (ECF No. 13) be granted, and Plaintiff’s
Complaint (ECF No. 1) be DISMISSED WITHOUT PREJUDICE.
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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 13th day of November 2024.
/s/ Christy Comstock
HON. CHRISTY COMSTOCK
UNITED STATES MAGISTRATE JUDGE
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