The opinion
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
BART WAYNE WOODARD PLAINTIFF
v. Case No. 6:19-cv-6021
SERGEANT DOROTHY GRIFFIN;
LIEUTENANT JENNIFER CARL;
CAPTAIN KING; and WARDEN
FAUST DEFENDANTS
ORDER
Before the Court is the Report and Recommendation filed January 28, 2020, by the
Honorable Barry A. Bryant, United States Magistrate Judge for the Western District of Arkansas.
ECF No. 20. Judge Bryant recommends that Plaintiff’s complaint be dismissed without prejudice
for failure to comply with a Court order. Plaintiff has responded with objections. ECF No. 23.
The Court finds the matter ripe for consideration.
Plaintiff is incarcerated in the Arkansas Department of Correction, Ouachita River Unit,
and is representing himself in this action. Plaintiff alleges that his constitutional rights were
violated when Defendants failed to protect him from assault by an inmate.1 ECF No. 7. Plaintiff
states that he filed an earlier lawsuit based on the same facts as the present lawsuit, Woodard v.
Griffin, No. 6:17-cv-6126 (W.D. Ark. 2017), and the earlier lawsuit was dismissed without
prejudice for failure to exhaust his administrative remedies.
On July 3, 2019, Defendants Griffin, Carl, and Faust filed a Motion to Dismiss, arguing
that Plaintiff had failed to exhaust his administrative remedies. ECF No. 15. The Court entered
1 Plaintiff alleges claims against Defendants Carl, Faust, and King in their official and individual capacities. However,
the official-capacity claims have been dismissed. ECF No. 9. Plaintiff alleges claims against Griffin only in her
individual capacity.
an order directing Plaintiff to respond to the Motion to Dismiss by August 26, 2019. ECF No. 17.
The order advised Plaintiff that “failure to properly comply with this Order shall result in the
dismissal of this action, without prejudice, pursuant to Local Rule 5.5(c)(2).” ECF No. 17.
Plaintiff moved the Court for an extension of time to file his response. ECF No. 18. The Court
granted Plaintiff’s motion, and he was given until September 25, 2019, to file his response. ECF
No. 19. Plaintiff did not file his response by the deadline.
On January 28, 2020, the Court issued the Report and Recommendation at issue, which
recommends that Plaintiff’s complaint be dismissed without prejudice for failure to comply with
the Court’s order directing him to file a response to the Motion to Dismiss. ECF No. 20. Plaintiff’s
objections were due on February 14, 2020, but he moved the Court for an extension of time. The
Court gave Plaintiff until March 4, 2020, to file his objections. ECF No. 22. Plaintiff filed his
objections on March 4, 2020. ECF No. 23.
The objections that Plaintiff filed are not responsive to the Report and Recommendation at
issue. The objections do not address Plaintiff’s failure to file a timely response to the Motion to
Dismiss. Instead, Plaintiff’s objections address the failure to exhaust argument made by
Defendants Griffin, Carl, and Faust in their Motion to Dismiss. Plaintiff does not give any reason
or offer any evidence as to why he waited until March 4, 2020, to respond to the arguments in the
Motion to Dismiss, despite being ordered to do so by September 25, 2019.
Local Rule 5.5(c)(2) states that a party not represented by counsel must prosecute the action
diligently and follow the Federal Rules of Civil Procedure. Local Rule 5.5(c)(2) further states that
“[i]f 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. Further, the Court may 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); see Fed. Rule of Civ. P. 41(b). Plaintiff has failed to obey the Court’s order to
respond to the Motion to Dismiss by September 25, 2019. After the Court entered that order, more
than four months passed without any communication from Plaintiff. On March 4, 2020, only after
the recommendation from Magistrate Judge Bryant to dismiss Plaintiff’s complaint for failure to
obey a court order, Plaintiff addressed the merits of the Motion to Dismiss for the first time.
Plaintiff, however, has neither addressed the reason for his tardiness in addressing the motion nor
submitted evidence that he was somehow prevented from complying with the Court’s deadline.
Consequently, the Court agrees with the Judge Bryant and finds that Plaintiff’s complaint should
be dismissed without prejudice for failure to obey a Court order.
Assuming Plaintiff had filed a timely response to the Motion to Dismiss and the Court were
to consider the exhaustion issue, the Court would reach the same result—dismissal of Plaintiff’s
complaint. It does not appear that Plaintiff has exhausted his administrative remedies as to any of
his claims in the amended complaint (ECF No. 7). In his earlier lawsuit, Plaintiff admitted, and
the Court concluded that Plaintiff had failed to exhaust his administrative remedies as to any failure
to protect claims related to the alleged inmate assault. There is no evidence in the record that
shows Plaintiff has since exhausted his administrative remedies as to these claims, which he also
alleges in the instant lawsuit. Plaintiff has submitted a grievance that he claims has been
exhausted. ECF No. 23-1. That grievance, however, relates to an allegation that Plaintiff is being
denied adequate medical care for severe headaches, which is not a claim Plaintiff makes in the
instant lawsuit. See ECF No. 7. There is no evidence in the record that shows Plaintiff has
exhausted his administrative remedies as to any of his claims in the instant lawsuit.
Based on its own de novo review, the Court overrules Plaintiff’s objections and adopts the
Report and Recommendation in toto. ECF No. 20. Plaintiff’s complaint is DISMISSED
WITHOUT PREJUDICE for failure to obey a Court order.
IT IS SO ORDERED, this 12th day of March, 2020.
/s/ Susan O. Hickey
Susan O. Hickey
Chief United States District Judge