Miller v. McGough et al

Filing 24

ORDER granting 23 Second MOTION to Dismiss Case filed by Mike McGough, Sherri Rice, Case Dismissed without prejudice, plaintiff has failed to comply with orders of the court and to prosecute case. Signed by Honorable Susan O. Hickey on November 28, 2016. (cnn)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION

MICHAEL WAYNE MILLER

v.

PLAINTIFF

Case No. 1:15-cv-1018

MIKE MCGOUGH and SHERRI RICE

DEFENDANTS

ORDER
Plaintiff Michael Wayne Miller submitted this pro se action for filing on April 2, 2015.
(ECF No. 1). Currently before the Court are Defendants’ Motions to Dismiss (ECF Nos. 19, 23),
and Plaintiff’s failure to respond to the Court’s Order to Show Cause. (ECF No. 22).
On April 2, 2015, the Court granted Plaintiff in forma pauperis status (“IFP”). (ECF No.
3). The Court’s IFP Order advised Plaintiff to keep the Court apprised of any address changes,
and noted that failure to keep the Court informed of an address change could result in the
dismissal of his case.
On two different occasions, mail sent to Plaintiff was returned as undeliverable. On April
16, 2015, mail sent to Plaintiff at the Union County Criminal Justice Center was returned,
indicating he was no longer there. Mail was resent to his new address at DCC – Southwest
Arkansas Community Correction Center. On January 26, 2016, mail sent to Plaintiff at DCC
was returned as undeliverable because Plaintiff had been paroled.

On January 27, 2016,

Plaintiff’s address was changed to the address he provided at booking. 1 (ECF No. 16).

1

This address was 497 Kelly Road, El Dorado, Arkansas 71730.

On March 17, 2016, Defendants filed a Motion to Dismiss. (ECF No. 19). Defendants
stated that they were unable to effect service of correspondence on Plaintiff because he failed to
keep the Court and Defendants apprised of his current address. Plaintiff did not respond to the
Motion to Dismiss. On April 18, 2016, Plaintiff notified the Court of a new address at 402
Quapaw Street, Hot Springs, Arkansas 71901.

This address remains Plaintiff’s address of

record.
On May 10, 2016, the Court entered a Show Cause Order, directing Plaintiff to show
cause why his case should not be dismissed for failure to follow the rules of the Court. (ECF No.
22). Plaintiff did not respond to the Show Cause Order, and the Order was not returned as
undeliverable.
On October 27, 2016, Defendants filed a second Motion to Dismiss. (ECF No. 23). As
grounds for dismissal, Defendants noted Plaintiff’s failure to respond to the Court’s Show Cause
Order and Plaintiff’s failure to keep the Court apprised of his current address. Plaintiff did not
respond to Defendants’ second Motion to Dismiss. Plaintiff has not communicated with the
Court since April 18, 2016.
While pro se pleadings are to be construed liberally, a pro se litigant is not excused from
complying with substantive and procedural law. See Burgs v. Sissel, 745 F.2d 526, 528 (8th Cir.
1984). Local Rule 5.5(c)(2) states 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.

2

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. See Fed. R. Civ. P. 41(b); see also 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) (quoting
Haley v. Kan. City Star, 761 F.2d 489, 491 (8th Cir. 1985)) (emphasis added).
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 the Court’s Order to Show Cause. Plaintiff
has also failed to prosecute this matter. Therefore, pursuant to Federal Rule of Civil Procedure
41(b) and Local Rule 5.5(c)(2), the Court finds that Defendants’ Motion to Dismiss (ECF No.
23) should be and hereby is GRANTED. Accordingly, Plaintiff’s case is hereby DISMISSED
WITHOUT PREJUDICE.
IT IS SO ORDERED, this 28th day of November, 2016.
/s/ Susan O. Hickey
Hon. Susan O. Hickey
United States District Judge

3