The opinion
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
JOHNSE DESMON GILL PLAINTIFF
v. Civil No. 6:22-cv-06013
DR. GUY HENRY, Medical Provider
at the Ouachita River Correctional Unit
of the Arkansas Division of Correction;
JUDGE SUSAN O. HICKEY;
MAGISTRATE JUDGE BARRY BRYANT;
VICKEY RAWLINGS;
and C. GARDNER DEFENDANTS
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This is a civil rights action filed by Plaintiff pursuant to 42 U.S.C. § 1983. Plaintiff, Johnse
Desmon Gill, proceeds in this matter pro se and in forma pauperis. (ECF No. 1, 2, 3). Pursuant
to the provisions of 28 U.S.C. § 636(b)(1) and (3) (2011), the Honorable Robert T. Dawson, Senior
United States District Judge, referred this case to the undersigned for the purpose of making a
Report and Recommendation.
Plaintiff filed his Complaint in this matter on January 21, 2022. (ECF No. 1). The
Complaint filed was incomplete, consisting of only three of eleven pages of the standard form, and
containing no factual allegations, claims, statement of relief sought, or signature. On January 24,
2022, Plaintiff filed two supplements. The first supplement (ECF No. 6) contained pages four
through eight of the standard form complaint. The second supplement (ECF No. 7) contained one
page relating to ADC Grievance # OR-21-00680, and pages nine through eleven of the standard
complaint form. Because Plaintiff failed to indicate the date he signed his Complaint, and he
submitted his Complaint piecemeal in three separate parts, the Court entered on Order on January
25, 2022, directing the Plaintiff to submit an Amended Complaint within 21 days. (ECF No. 8).
Plaintiff’s Amended Complaint was due by February 15, 2022. The Order further states: “This
case shall be subject to dismissal if Plaintiff fails to return the Amended Complaint to the Court
by the deadline.” Id.
Plaintiff filed another supplement to his Complaint on February 15, 2022, consisting of
only pages ten and eleven of the standard complaint form and two pages relating to ADC Grievance
# OR-22-00002. (ECF No. 10). Plaintiff did not file a complete Amended Complaint as ordered.
In an Order dated February 16, 2022, Plaintiff was given until March 9, 2022, to show
cause why this action should not be dismissed for failure to obey an order of the Court. (ECF No.
11). The Show Cause Order further noted: “If Plaintiff fails to respond by the deadline, this case
shall be subject to dismissal.” Id. Plaintiff has not responded to the Show Cause Order.
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). Local Rule 5.5(c)(2) states 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).
Plaintiff has failed to obey an Order of the Court and has failed to prosecute this matter.
Therefore, pursuant to Federal Rule of Civil Procedure 41(b) and Local Rule 5.5(c)(2), it is
recommended that Plaintiff’s Complaint in this case be DISMISSED WITHOUT PREJUDICE.
The parties have fourteen (14) 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.
IT IS SO ORDERED this 14th day of March 2022.
/s/
HON. MARK E. FORD
UNITED STATES MAGISTRATE JUDGE