Finley v. McCormick et al

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
JAIME GLENN FINLEY (also known as
Possum) 	PLAINTIFF
v. 	Civil No. 6:24-cv-06057-SOH-BAB
SHERIFF MIKE McCORMICK (Garland
County), 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 multiple Court Orders
and failure to prosecute this case.
I. BACKGROUND
Plaintiff filed his Complaint on April 23, 2024. (ECF No. 2). On July 16, 2024, the Court
entered an Order directing Plaintiff to submit an Amended Complaint to address deficiencies in
his Complaint. (ECF No. 9). The deadline for Plaintiff to do so was August 6, 2024. (Id.). This
Order was not returned as undeliverable. 	When Plaintiff failed to comply, the Court entered a
Show Cause Order on August 12, 2024. (ECF No. 10). The deadline to respond was September
3, 2024. (Id.). On August 23, 2024, the Show Cause Order was returned as undeliverable, and the
deadline for him to advise the Court of his new address was set for September 23, 2024. (ECF
No. 11).
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On September 5, 2024, Plaintiff filed a Notice of Address Change indicating he had been
released from custody. (ECF No. 12). Because Plaintiff proceeds in forma pauperis (“IFP”) in
the case, the Court entered an Order directing Plaintiff to submit a new IFP application to indicate
his free-world financial status. (ECF No. 13). Plaintiff was directed to return the completed IFP
form by September 27, 2024. 	(Id.). 	When Plaintiff failed to do so, the Court entered a Show
Cause Order directing Plaintiff to show cause for his failure to obey a Court Order by October 24,
2024. (ECF No. 14). Plaintiff filed a document docketed as his Motion for Leave to Proceed IFP
on October 15, 2024. (ECF No. 15). Review of this motion, however, indicated that he had not
completed and signed a new IFP application form as directed. Instead, he submitted what appeared
to be bank statements and an unworn statement from an individual. (Id.). Accordingly, the Court
entered an Order directing the Clerk to send him another IFP application and directing him to
complete and return that IFP application by November 14, 2024. (ECF No. 16). Instead of filing
his IFP application as directed, Plaintiff filed a Motion for Counsel. 	(ECF No. 17). 	This was
denied on October 29, 2024. (ECF No. 18).
Every Order directing Plaintiff to submit a required document advised him that failure to
obey the Order by the deadline would result in the dismissal of his case. Despite numerous Orders
to do so, Plaintiff has failed to submit either an Amended Complaint or a completed IFP application
reflecting his free-world financial status.
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. .
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. . 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 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 comply with multiple 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’s Complaint (ECF No. 2) 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
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reminded that objections must be both timely and specific to trigger de novo review by the
district court.
DATED this 15th day of November 2024.
/s/ 	Barry A. Bryant
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE
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