Levac v. McCormick

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
DANIEL LEVAC 	PLAINTIFF
v. 	Civil No. 6:25-cv-06018-SOH-MEF
MIKE McCORMICK
(Sheriff, Garland County, Arkansas) 	DEFENDANT
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This is a civil rights action filed under 42 U.S.C. § 1983. The case was directly assigned
to the undersigned Magistrate Judge pursuant to General Order 2024-02, but not all parties to the
action have consented to the jurisdiction of the undersigned. See 28 U.S.C. § 636(c). Accordingly,
the case will automatically be reassigned to Chief United States District Judge Susan O. Hickey
and referred to the undersigned for a report and recommendation pursuant to the provisions of 28
U.S.C. §§ 636(b)(1) and (3).
I. 	BACKGROUND
Plaintiff filed his Complaint on February 7, 2025. (ECF No. 1). That same day, the Court
entered an Order directing Plaintiff to submit an in forma pauperis (“IFP”) application and an
Amended Complaint by February 28, 2025. (ECF No. 2). When Plaintiff failed to submit either
document by the deadline, the Court entered a Show Cause Order directing Plaintiff to submit his
Response by March 26, 2025. 	(ECF No. 4). 	Neither Order was returned as undeliverable. 	To
date, Plaintiff has failed to file his IFP application, his Amended Complaint, and his Show Cause
Response.
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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
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 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’s 	Complaint 	(ECF 	No. 	1) 	be
DISMISSED WITHOUT PREJUDICE.
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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 (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 31st day of March 2025.
/s/
Mark E. Ford
HON. MARK E. FORD
UNITED STATES MAGISTRATE JUDGE
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