IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS HARRISON DIVISION

PATRICK MICHAEL IAN FINNEGAN PLAINTIFF

v. Civil No. 3:21-cv-03080-TLB-MEF

KEITH LEOPOLD DEFENDANT

REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

This is a civil rights action filed by the Plaintiff pursuant to

. Plaintiff proceeds pro se and in forma pauperis. Pursuant to the provisions of

(b)(1) and (3), the Honorable Timothy L. Brooks, United States District Judge, referred this case to the undersigned for the purpose of making a Report and Recommendation. The case is before the Court on the Plaintiff’s failure to obey the Court’s orders. I. DISCUSSION On March 27, 2023, Plaintiff informed the Court by telephone of a change in his address. The address supplied indicated that Plaintiff was no longer incarcerated. For this reason, an Order (ECF No. 45) was entered directing Plaintiff to complete and file a new in forma pauperis (“IFP”) application to determine if Plaintiff should be required to pay all, or a portion of, the fees and costs of the lawsuit. Plaintiff’s completed IFP was due by April 17, 2023. Plaintiff was advised that failure to pay the filing fee or resubmit an IFP application by the deadline “shall” result in the dismissal of this case. Plaintiff did not file an IFP motion or pay the filing fee. This Order was not returned to the Court as undeliverable. Out of an abundance of caution, Plaintiff was provided with a second 1 opportunity to comply by the filing of a Show Cause Order (ECF No. 48). Plaintiff’s response to the Show Cause Order was due by May 11, 2023. To date, Plaintiff has not paid the filing fee, filed an IFP motion, or responded to the Show Cause Order. He has not requested an extension of time to file his responses. No mail has been

returned as undeliverable. Plaintiff has failed to comply with the Court’s Orders (ECF Nos. 45 & 48). On May 17, 2023, Defendant filed a Motion to Dismiss (ECF No. 50) asking for the case to be dismissed based on Plaintiff’s failure to comply with the above-mentioned Orders. 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 an order of the court. Fed. R. Civ. P. 41(b); Line v. Wabash R.R. Co.,

(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,

(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. II. CONCLUSION For these reasons, it is recommended that, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, this case be DISMISSED WITHOUT PREJUDICE based on Plaintiff’s failure to prosecute this case, his failure to obey the orders of the Court, and his failure to comply with Local Rule 5.5(c)(2). The parties have fourteen (14) days from receipt of the Report and Recommendation

2 in which to file written objections pursuant to

(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 2nd day of June 2023.

/s/ HON. MARK E. FORD UNITED STATES MAGISTRATE JUDGE

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