Benton v. Ball

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

HOT SPRINGS DIVISION

JOHNNY AUSTIN BENTON PLAINTIFF

v. Civil No. 6:22-CV-06047-RTD-BAB

TODD BALL, et. al. DEFENDANTS

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

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

of 28 U.S.C. § 636(b)(1) and (3), 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. Currently before the Court is Plaintiff’s failure to obey three Court Orders and

failure to prosecute this case.

I. BACKGROUND

Plaintiff filed his Complaint in the Eastern District of Arkansas on April 26, 2022. (ECF

No. 1). It was transferred to this District on April 28, 2022. (ECF No. 5). That same day, the

Court entered Orders directing Plaintiff to file a completed in forma pauperis (“IFP”) application

and an Amended Complaint by May 19, 2022. (ECF Nos. 7, 8). Both Orders advised Plaintiff

that failure to submit the required documents by the deadline would result in the dismissal of his

case. (Id.). When Plaintiff failed to submit either a completed IFP or an Amended Complaint, the

Court entered a Show Cause Order directing Plaintiff to explain his failure to obey two Court

Orders by June 14, 2022. (ECF No. 9). This Order also advised Plaintiff that failure to respond

by the deadline would result in the dismissal of his case. (Id.). This Order was not returned as

undeliverable.

To date, Plaintiff has failed to submit his IFP application, his Amended Complaint, and his

Show Cause Response.

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

Plaintiff has failed to comply with three Court Orders. 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, it is recommended that Plaintiff Complaint (ECF No. 1) 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 8th day of August 2022.

/s/ Barry A. Bryant

HON. BARRY A. BRYANT

UNITED STATES MAGISTRATE JUDGE