Avery v. Turn Key Medical et al

Filing 40

OPINION AND ORDER dismissing without prejudice claims against Smart Communications Holding, Inc. d/b/a SmartJailMail.com based on Plaintiffs failure to prosecute those claims, his failure to obey the order of the Court, and his failure to comply with Local Rule 5.5(c)(2). Fed. R. Civ. P. 41(b). Signed by Honorable P. K. Holmes, III on October 16, 2018. (tg)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
ROBERT W. AVERY
v.

PLAINTIFF
Civil No. 5:18-cv-05075

TURN KEY HEALTH CLINICS,
LLC; JOHN AND JANE DOE EMPLOYEES
OF TURN KEY HEALTH CLINICS;
TRINITYSERVICES GROUP, INC.; JOHN
AND JANE DOE EMPLOYEES OF TRINITY
SERVICES GROUP; SHERIFF HOLLOWAY;
CAPTAIN GUYLL; LIEUTENANT HOLT;
JOHN AND JANE DOE EMPLOYEES OF THE
BENTON COUNTY DETENTION CENTER;
SMART COMMUNICATIONS HOLDING, INC.
d/b/a SmartJailMail.com; KEEFE
COMMISSARY NETWORK, LLC; and JOHN
AND JANE DOE EMPLOYEES OF KEEFE
COMMISSARY

DEFENDANTS

OPINION AND ORDER
This is a civil rights action filed by the Plaintiff pursuant to 42 U.S.C. § 1983. Plaintiff proceeds
pro se and in forma pauperis. When Plaintiff filed this lawsuit, he was incarcerated in the Benton County
Detention Center. Plaintiff is currently incarcerated in the Delta Regional Unit of the Arkansas Department
of Correction.
On August 13, 2018, Separate Defendant Smart Communications Holding, Inc., filed a Motion to
Dismiss (ECF No. 25). That same day, an Order (ECF No. 35) was entered directing Plaintiff to file a
response to the Motion to Dismiss by September 4, 2018. Plaintiff was advised that failure to respond to
the Order would subject the case to dismissal, without prejudice.
On September 7, 2018, mail was returned to the Court as undeliverable from the Benton County
Detention Center. On September 12, 2018, Plaintiff filed a notice of change of address to the Delta Regional
Unit. All documents that had been returned as undeliverable, including the Order directing the filing of a
response to the Motion to Dismiss, were resent to the Plaintiff. On September 14, 2018, in view of

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Plaintiff’s recent change of address, an Order (ECF No. 38) was entered extending Plaintiff’s response time
to October 3, 2018.
To date, Plaintiff has not filed a response to the Motion to Dismiss. He has not requested an
extension of time to file his response. No mail has been returned as undeliverable. Plaintiff has failed to
comply with the Court’s Order (ECF No. 38) requiring him to file his response to the Motion to Dismiss
by October 3, 2018.
The Federal Rules of Civil Procedure specifically contemplate dismissal of a case on the ground
that the plaintiff failed to prosecute or failed to comply with order of the court. Fed. R. Civ. P. 41(b); Line
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, 80304 (8th Cir. 1986)(emphasis added). Additionally, Rule 5.5(c)(2) of the Local Rules for the Eastern and
Western Districts of Arkansas requires parties appearing pro se to monitor the case, and to prosecute or
defend the action diligently.
In this case, the Court finds it appropriate to limit the dismissal to Smart Communications Holding,
Inc. Therefore, pursuant to Rule 41(b), all claims against Smart Communications Holding, Inc. d/b/a
SmartJailMail.com are DISMISSED WITHOUT PREJUDICE based on Plaintiff’s failure to prosecute
those claims, his failure to obey the order of the Court, and his failure to comply with Local Rule 5.5(c)(2).
Fed. R. Civ. P. 41(b).
IT IS SO ORDERED this 16th day of October 2018.

/s/P.K. Holmes,III
P. K. HOLMES, III
CHIEF U.S. DISTRICT JUDGE

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