Hildebrand v. Kugler

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

EL DORADO DIVISION

THEOTIS HILDEBRAND PLAINTIFF

v. Civil No. 1:19-CV-01006

LT. PAUL KUGLER, et. al. DEFENDANTS

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

This is a civil rights action provisionally filed pursuant to 42 U.S.C. § 1983. Pursuant to

the provisions of 28 U.S.C. § 636(b)(1) and (3)(2011), the Honorable Susan O. Hickey, Chief

United States District Judge, referred this case to the undersigned for the purpose of making a

Report and Recommendation.

Currently before the Court is Plaintiff’s failure to obey a Court Order and to prosecute this

case.

I. BACKGROUND

Plaintiff filed his Complaint on February 27, 2019. (ECF No. 1). On November 21, 2019,

Defendants filed a Motion for Summary Judgment. (ECF No. 37). On November 22, 2019, the

Court entered an Order directing Plaintiff to file his Response by December 13, 2019. In the Order,

Plaintiff was advised that failure to submit his Response by the deadline could result in either the

acceptance of Defendants’ facts being deemed admitted or in the dismissal of his case. (ECF No.

40). On December 2, 2019, Plaintiff filed a Motion to Appoint Counsel, which was denied. (ECF

Nos. 41, 42). When Plaintiff failed to file a Response, the Court entered a Show Cause Order on

March 2, 2020. (ECF No. 43). Plaintiff was directed to file his Response by March 23, 2020.

(Id.).

When Plaintiff failed to respond to the Show Cause Order, the undersigned entered a

Report and Recommendation which recommended dismissal of the case for failure to prosecute

and failure to obey a Court Order on April 1, 2020. (ECF No. 44). Plaintiff filed his Response to

the Show Cause Order twenty-three days past the deadline for doing so, on April 14, 2020. (ECF

No. 45). He also filed his Objection to the Report and Recommendation that same day. (ECF No.

46). In his Objection, he indicated that the mailroom at his correctional institution told him that

the United States Postal Service lost his legal mail. (ECF Nos. 46, 47).

On April 20, 2020, the Honorable Susan O. Hickey, Chief United States District Judge for

the Western District of Arkansas, entered an Order directing Plaintiff to provide documentation of

the lost legal mail by May 4, 2020. (ECF No. 47). On April 29, 2020, this Order was returned as

undeliverable and Plaintiff filed a Notice of Address change indicating he had paroled out of ADC

custody on April 20, 2020. (ECF No. 49). On May 4, 2020, Judge Hickey entered a second Order,

noting that Plaintiff had likely never received the April 20th Order, and directing Plaintiff to

provide evidence of lost mail by May 18, 2020. (ECF No. 50). Plaintiff was advised that his

failure to do so would result in the Court adopting the Report and Recommendation to dismiss this

case. (Id. at 2). Plaintiff filed his Response on May 13, 2020. (ECF No. 51). He stated that

neither the ADC nor the USPS would assist him without further order from this Court. (Id.).

On May 15, 2020, Judge Hickey declined to adopt the Report and Recommendation to

dismiss the case. Plaintiff was directed to submit his Response to Defendants’ Summary Judgment

Motion by June 5, 2020. (ECF No. 52). Plaintiff was advised that failure to provide his Response

by the deadline would result in the dismissal of his case for failure to prosecute. (Id. at 2). This

Order was not returned as undeliverable.

To date, Plaintiff has failed to file his Response to the Summary Judgment Motion, and has

not otherwise communicated with the Court.

II. LEGAL STANDARD

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

III. ANALYSIS

Despite being given every benefit of the doubt, as well as several additional months to

submit his Summary Judgment Response, Plaintiff has failed to comply with a Court Order and

submit his Response. Plaintiff has failed to prosecute this matter. Accordingly, pursuant to Federal

Rule of Civil Procedure 41(b) and Local Rule 5.5(c)(2) Plaintiff’s Complaint should be dismissed

without prejudice for failure to comply with the Court’s Local Rules and Orders and failure to

prosecute this case.

IV. CONCLUSION

Accordingly, I recommend that Plaintiff’s Complaint be DISMISSED WITHOUT

PREJUDICE.

The parties have fourteen days from receipt of the Report and Recommendation in

which to file written objections pursuant to 28 U.S.C. § 636(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 31st day of July 2020.

/s/ Barry A. Bryant

HON. BARRY A. BRYANT

UNITED STATES MAGISTRATE JUDGE