Allen v. Hollenbeck et al

Filing 27

ORDER; the Court finds that motion 25 should be GRANTED and this case should be DISMISSED WITHOUT PREJUDICE. Signed by Honorable P. K. Holmes, III on August 30, 2017. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
JOSHUA JAMES ALLEN

v.

PLAINTIFF

Civil No. 2:17-cv-02008

SHERIFF BILL HOLLENBECK, et al.

DEFENDANTS

ORDER
This is a civil rights action filed by the Plaintiff, Joshua James Allen, pursuant to 42 U.S.C.
§ 1983.

The case is currently before me on Defendants’ Motion to Dismiss (Doc. 25).

The

Plaintiff has not responded to the motion.
I. BACKGROUND
Plaintiff filed his complaint (Doc. 1), on January 10, 2017. An order granting in forma
pauperis (IFP) was entered on the same date.

(Doc. 3). In this order, Plaintiff was advised his

case could be dismissed if he did not keep the Court apprised of his current address.
On April 21, 2017, the Order docketed as document 18 and the Summons docketed as
document 20, previously mailed to the Plaintiff, were returned to the Court as undeliverable. No
new address was available at that time.
telephone on May 17, 2017.1

The Plaintiff reported a change of address over the

The Summons docketed as document 22, previously mailed to the

Plaintiff, was returned to the Court as undeliverable on May 22, 2017.

The Summons docketed

as document 22 was then resent to Plaintiff’s last reported address, City of Faith, 1401 South

1 The new address reported by Plaintiff on May 17, 2017 was City of Faith, 1401 South Garfield Avenue, Little
Rock, Arkansas 72204.

1

Garfield Avenue, Little Rock, Arkansas.

On May 26, 2017, mail including the Summons

docketed as document 24 originally sent to the Plaintiff’s City of Faith address on May 24, 2017
was returned to the court as undeliverable. No new address was available.
The Defendants move for dismissal of Plaintiff’s complaint because since May 24, 2017,
mail has repeatedly been returned as undeliverable and because attempts to locate a current address
were unsuccessful.

(Doc. 25).

The Certificate of Service attached to the Motion to Dismiss

shows that the pleading was mailed to the Plaintiff’s last known address. The Plaintiff has not
responded to the Defendants’ motion and has not communicated with the Court since May 17,
2017.
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
2

with any court order.” Brown v. Frey, 806 F.2d 801, 803-04 (8th Cir. 1986) (emphasis added).
IV. CONCLUSION
In the present case, Plaintiff has failed to prosecute this matter and has failed to keep the
Court informed of his current address. Therefore, pursuant to Federal Rule of Civil Procedure
41(b) and Local Rule 5.5(c)(2), the Court finds that the motion (Doc. 25) should be GRANTED
and this case should be DISMISSED WITHOUT PREJUDICE.
IT IS SO ORDERED this 30th day of August, 2017.
/s/P. K. Holmes, III
P.K. HOLMES, III
CHIEF U.S. DISTRICT JUDGE

3