Syrock v. Hicks

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FORT SMITH DIVISION

JAMES PAUL SYROCK PLAINTIFF

v. Civil No. 2:22-cv-02126-PKH-MEF

SERGEANT BRANDON HICKS, et. al. DEFENDANTS

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

This is a civil rights action filed under 42 U.S.C. § 1983. Pursuant to the provisions of 28

U.S.C. § 636(b)(1) and (3), the Honorable P. K. Holmes, III, 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 two Court Orders and failure to

prosecute this case.

I. BACKGROUND

Plaintiff filed his Complaint on July 29, 2022. (ECF No. 1). On August 16, 2022, the

undersigned entered an Order directing Plaintiff to file an Amended Complaint to address

deficiencies in his initial Complaint. (ECF No. 6). Plaintiff was directed to submit his Amended

Complaint by September 6, 2022, and was advised that his case would be subject to dismissal if

he failed to do so. (Id.). This Order was not returned as undeliverable. When Plaintiff failed to

submit his Amended Complaint, the undersigned entered a Report and Recommendation on

September 12, 2022, recommending that Plaintiff’s Complaint be dismissed for failure to obey a

court order and failure to prosecute his case. (ECF No. 7). Plaintiff filed an Objection on

September 21, 2022, stating that he was unaware that the Court did not receive his Amended

Complaint. (ECF No. 8). As a result, Judge Holmes declined to adopt the Report and

Recommendation and gave Plaintiff another opportunity to comply with the Order to file an

Amended Complaint. (ECF No. 9). On September 22, 2022, the undersigned entered an Order

directing Plaintiff to file his Amended Complaint by October 13, 2022. (ECF No. 10).

Plaintiff filed his Amended Complaint on October 11, 2022. (ECF No. 11). On November

2, 2022, the undersigned entered an Order giving Plaintiff another opportunity to correct the

remaining deficiencies in his Amended Complaint. The deadline for Plaintiff to do so was set for

November 23, 2022. (ECF No. 12). When Plaintiff failed to file his second Amended Complaint,

the undersigned entered a Show Cause Order directing Plaintiff to respond by December 21, 2022.

(ECF No. 13). Both the Order directing the second Amended Complaint and the Show Cause

Order advised Plaintiff that failure to respond by the deadline would result in the dismissal of his

case. (ECF Nos. 12, 13). Neither Order was returned as undeliverable.

To date, Plaintiff has failed to file either his second Amended Complaint or his Show Cause

Response, and he 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

Plaintiff has failed to comply with two 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 first, and deficient, Amended 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’s Amended Complaint (ECF No. 11) 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.

DATED this 16th day of February 2023.

/s/

HON. MARK E. FORD

UNITED STATES MAGISTRATE JUDGE