Cotton v. Parker

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

HARRISON DIVISION

NATHANIEL ERIC COTTON PLAINTIFF

v. Civil No. 3:22-cv-03038-TLB-MEF

JAIL ADMINISTRATOR HETTIE PARKER,

Searcy County Detention Center DEFENDANT

REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

This is a civil rights action filed by the Plaintiff under 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 Timothy L. Brooks, 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 November 3, 2022, Defendant filed a Motion to Dismiss. (ECF No. 12). The

following day, an Order (ECF No. 15) was entered directing Plaintiff to file a response to the

Motion to Dismiss by November 25, 2022. Plaintiff was advised that failure to respond to the

Order would result in the dismissal of this case.

Plaintiff did not file a response to the Motion to Dismiss by November 25, 2022. On

November 30, 2022, a Show Cause Order (ECF No. 16) was entered. Plaintiff was given until

December 21, 2022, to show cause why he failed to obey the Order 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 or a response to the

Show Cause Order. He has not requested an extension of time to file his responses. No mail has

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been returned as undeliverable. Plaintiff has failed to comply with the Court’s Orders. (ECF

Nos. 15 & 16).

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, pursuant to Rule 41(b) and Local Rule 5.5(c)(2), it is recommended that

this case be DISMISSED WITHOUT PREJUDICE based on Plaintiff’s failure to prosecute this

case and his failure to obey the orders of the Court.

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.

Dated this 3rd day of January 2023.

/s/

HON. MARK E. FORD

UNITED STATES MAGISTRATE JUDGE

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