Hawkins v. Richardson et al

Filing 31

ORDER dismissing Plaintiff's Amended Complaint without prejudice. Signed by Honorable Susan O. Hickey on February 1, 2019. (mll)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
BILLY VON HAWKINS
v.

PLAINTIFF
Civil No. 4:18-cv-04051

CORPORAL RICHARDSON,
Miller County Detention Center

DEFENDANTS
ORDER

Plaintiff Billy Von Hawkins filed this case pro se pursuant to 42 U.S.C. § 1983. Before
the Court is Plaintiff’s failure to obey a Court order.
Plaintiff filed his Complaint on April 4, 2018, naming Corporal Richardson, Officer
Gregory, Warden Walker, Lieutenant Miller and Captain Rodriquez as Defendants. (ECF No. 1).
On April 26, 2018, Plaintiff filed an Amended Complaint naming only Corporal Richardson as a
defendant. (ECF No.7). The same day, the Court directed service on Defendant Richardson at the
Miller County Sheriff’s Office located at 2300 East Street, Texarkana, Arkansas. (ECF No. 8).
On May 18, 2018, the summons issued to Defendant Richardson was returned unexecuted
indicating “Miller Co. advised two Richardsons neither ever cpls. One employed, one not.
Complaint has no 1st name or other identifiers returned for more info.” (ECF No. 11).
On June 15, 2018, the Court ordered Plaintiff to supply the Court with more information
regarding the identity of Defendant Richardson such as his first name, race, age, height, and
weight. (ECF No. 15). On June 27, 2018, Plaintiff responded providing additional identifying
information. (ECF No. 19). On July 2, 2018, the Court attempted service a second time on
Defendant Richardson at the Miller County Sheriff’s Office. (ECF No. 20). On July 12, 2018, the
summons issued to Defendant Richardson was again returned unexecuted. This time the Miller
County Sheriff’s Office indicated that Richardson no longer worked for the Miller County

Sheriff’s Office, and it provided the Court with his last known address and phone number. (ECF
No. 22).
On July 13, 2018, the Court again ordered service on Defendant Richardson at his last
known address. (ECF No. 23). Because there was some confusion as to whether the U.S. Marshals
ever received the July 13, 2018 order regarding service, the Court issued another order on October
9, 2018, directing service on Defendant Richardson at his last known address. (ECF No. 27). On
October 25, 2018, the summons issued to Defendant Richardson was returned unexecuted
indicating “Certified Mail . . . Returned by U.S. Postal Service marked ‘Moved left no address
Unable to Forward.’” (ECF No. 29).
It is Plaintiff’s responsibility to provide the Court with an address for proper service on all
defendants. See Lee v. Armontrout, 991 F.2d 487, 489 (8th Cir. 1993). Because service was
attempted on Defendant Richardson three times without success, on December 4, 2018, the Court
entered an order directing Plaintiff to show cause on or before December 18, 2018, as to why this
case should not be dismissed. (ECF No. 30). The order stated that this case would be dismissed
if Plaintiff failed to show cause by the Court’s imposed deadline. To date, Plaintiff has not
responded to the Court’s order and the order has not been returned as undeliverable.
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 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

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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).
Plaintiff has failed to obey a court order. Therefore, pursuant to Federal Rule of Civil
Procedure 41(b), the Court finds that this case should be dismissed. Accordingly, Plaintiff’s
Amended Complaint (ECF No. 7) is DISMISSED WITHOUT PREJUDICE.
IT IS SO ORDERED this 1st day of February, 2019.
/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge

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