Jones v. Ghormley

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

TEXARKANA DIVISION

DONAL JONES PLAINTIFF

v. Case No. 4:22-cv-4074

KAREN GHORMLEY; STEVE OTWELL;

and SHERIFF DANNY MARTIN DEFENDANTS

ORDER

Before the Court is Plaintiff’s failure to comply with orders of the Court. Plaintiff Donal

Jones originally filed this 42 U.S.C. § 1983 action pro se on August 23, 2022, in the Eastern

District of Arkansas. ECF No. 2. Plaintiff submitted an application to proceed in forma pauperis

(“IFP”) on the same day. ECF No. 1. This matter was transferred to this Court on August 24,

2022. ECF No. 3. Plaintiff was granted IFP status on August 25, 2022. ECF No. 6.

The parties litigated this matter through the discovery period. On April 27, 2023,

Defendants filed their Motion for Summary Judgment, Brief in Support, and Statement of Facts.

ECF Nos. 17, 18, & 19. The Court then entered an Order directing Plaintiff to respond to

Defendants’ Motion for Summary Judgment. ECF No. 20. That Order included the following

specific instructions regarding the procedure and legal requirements for a summary judgment

response:

At the summary judgment stage, a plaintiff cannot rest upon mere allegations and, instead,

must meet proof with proof. See Fed. R. Civ. P. 56(e). This means the Response must

include legal arguments, as well as affidavits, prison records, or other evidence establishing

that there is a genuine issue of material fact that must be resolved at a hearing or trial. The

affidavit must be based upon the personal knowledge of the person executing the affidavit

and must be either: (1) sworn and subscribed by a notary public; or (2) executed under

penalty of perjury, as provided for by 28 U.S.C. 1746.

Furthermore, Plaintiff must also separately file a Statement of Disputed Facts, which lists:

(a) any disagreement with the specifically numbered factual assertions contained in the

Statement of Undisputed Facts filed by the Defendant; and (b) any other disputed facts that

must be resolved at a hearing or trial.

If Plaintiff disputes any of the facts set forth by the Defendant in the Statement of

Undisputed Facts, each numbered paragraph must be identified that contains the fact in

dispute and, for each paragraph identified, explain why there is a dispute.

Plaintiff is advised that if he intends to rely upon any records or exhibits that have been

previously filed with the Court, Plaintiff must specifically refer to those documents by ECF

document and page numbers. The Court will not sift through the file to find support for

the factual contentions. See Crossley v. Georgia-Pacific Corp., 355 F.3d 1112, 1113-14

(8th Cir. 2004) (affirming the grant of summary judgment because a plaintiff failed to

properly refer to specific pages in the record that supported his position).

ECF No. 20. That Order was not returned as undeliverable. Plaintiff’s response to Defendants’

Motion for Summary Judgment was due on May 19, 2023. Plaintiff failed to file a response.

On May 22, 2023, the Court entered an Order to Show Cause. ECF No. 21. In that Order,

Plaintiff was directed to show cause why he failed to comply with the Court’s Order directing a

response to Defendants’ Motion for Summary Judgment. Plaintiff’s response to the Show Cause

Order was due on June 12, 2023. That Show Cause Order was sent to Plaintiff’s address of record,

but it was returned as undeliverable mail. ECF No. 22. Plaintiff was given a thirty (30) day period

to notify the Court of a new address. That period expired on July 7, 2023. The Court has not

received any communication from the Plaintiff with a notice of new address or in response to any

of the Court’s Orders. Plaintiff has not communicated with the Court in any way since filing his

Amended Complaint in October 2022. ECF No. 11.

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 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, 803-04 (8th Cir. 1986) (emphasis

added).

Furthermore, a dismissal pursuant to Rule 41(b) operates as an adjudication on the merits

unless it is otherwise specified. Fed. R. Civ. P. 41(b); Brown, 806 F.2d at 803. In considering a

Rule 41(b) dismissal, the Court must balance: (1) “the degree of [Plaintiff’s] egregious conduct;”

(2) the adverse impact of the conduct on the Defendants; and (3) the Court’s ability to administer

justice. Rodgers v. Curators of University of Missouri, 135 F.3d 1216, 1219 (8th Cir. 1998)

(internal quotations omitted). In Rodgers, the Eighth Circuit provides the standard the Court must

consider before dismissing with prejudice for failure to prosecute:

Dismissal with prejudice is an extreme sanction and should be used only in cases of willful

disobedience of a court order or . . . persistent failure to prosecute a complaint. [The Court

must consider] . . . whether in the particular circumstances of the case, the needs of the

court in advancing a crowded docket and preserving respect for the integrity of its internal

procedures are sufficient to justify the harsh consequences of forever denying a litigant of

his day in court. However, the [Court] need not [find] that appellant acted in bad faith,

only that he acted intentionally as opposed to accidentally or involuntarily.

Id.

Here, Defendants expended resources conducting discovery and preparing a Motion for

Summary Judgment. Plaintiff then chose not to respond to their Motion even after directed to do

so by the Court. Plaintiff was advised in two separate Court orders that failure to respond would

result in dismissal of his case. Therefore, pursuant to Federal Rule of Civil Procedure 41(b) and

Local Rule 5.5(c)(2), the Court finds that this case should be dismissed. Accordingly, Plaintiff’s

Complaint (ECF No. 2) is hereby DISMISSED WITH PREJUDICE.

IT IS SO ORDERED, this 9th day of August, 2023.

/s/ Susan O. Hickey

Susan O. Hickey

Chief United States District Judge