Mitchell v. Arriola

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FORT SMITH DIVISION

CEDRIC A. MITCHELL PLAINTIFF

v. Civil No. 2:20-cv-02211-PKH-BAB

DETECTIVE TOBIAS ARRIOLA; and

DETECTIVE RUSSELL URSERY DEFENDANTS

REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

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

proceeds pro se and in forma pauperis. Pursuant to the provisions of 28 U.S.C. §§ 636(b)(1) and

(3), the Honorable P. K. Holmes, III, United States District Judge, referred this case to the

undersigned for the purpose of making a Report and Recommendation. The case is before the

Court on Plaintiff’s failure to obey the Orders of the Court.

I. DISCUSSION

On August 17, 2022, Separate Defendant Detective Tobias Arriola filed a Motion to

Dismiss. (ECF No. 63). On August 19, 2022, Plaintiff was directed to respond to the Motion to

Dismiss by September 9, 2022. (ECF No. 65). Plaintiff was advised that failure to comply with

the Order would result in the dismissal of the case. Id.

On August 29, 2022, Separate Defendant Detective Russell Ursery filed a Motion for

Summary Judgment. (ECF No. 66). That same day, an Order was entered directing Plaintiff to

file a response to the Motion for Summary Judgment by September 19, 2022. (ECF No. 69).

Plaintiff was advised that failure to respond to the Order would result in: (a) all the facts set forth

by the Defendants in the summary judgment papers being deemed admitted by the Plaintiff, and/or

(b) shall subject the case to dismissal, without prejudice.

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Plaintiff did not file a response to the Motion to Dismiss or the Motion for Summary

Judgment. On September 23, 2022, a Show Cause Order was entered. (ECF No. 70). Plaintiff

was given until October 14, 2022, to show cause why he failed to obey the Orders of the Court.

Plaintiff was advised that if he failed to respond to the Show Cause Order the case shall be subject

to dismissal.

To date, Plaintiff has not filed a response to the Motion to Dismiss, the Motion for

Summary Judgment, or to the Show Cause Order. He has not requested an extension of time to

file his responses. No mail has been returned as undeliverable. Plaintiff has failed to comply

with the Court’s Orders (ECF Nos. 65, 69, 70).

The Federal Rules of Civil Procedure specifically contemplate dismissal of a case on the

ground that the plaintiff failed to prosecute or failed to comply with an order of the court. Fed.

R. Civ. P. 41(b); Line 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).

Additionally, Rule 5.5(c)(2) of the Local Rules for the Eastern and Western Districts of Arkansas

requires parties appearing pro se to monitor the case, and to prosecute or defend the action

diligently.

II. CONCLUSION

For these reasons, it is recommended that, pursuant to Rule 41(b), the Plaintiff’s Complaint

(ECF No. 1) be DISMISSED WITHOUT PREJUDICE based on Plaintiff’s failure to prosecute

this case, his failure to obey the Orders of the Court, and his failure to comply with Local Rule

5.5(c)(2). Fed. R. Civ. P. 41(b).

The parties have fourteen (14) days from receipt of the Report and Recommendation

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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 24th day of October 2022.

/s/ Barry A. Bryant

HON. BARRY A. BRYANT

UNITED STATES MAGISTRATE JUDGE

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