Weeks v. Stewart

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

HOT SPRINGS DIVISION

PAUL MICHAEL WEEKS PLAINTIFF

v. Civil No. 6:22-cv-06074-SOH-BAB

DEXTER PAYNE, 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 Susan O. Hickey, Chief 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 a Court Order and

failure to prosecute this case.

I. BACKGROUND

Plaintiff filed his Complaint in the Eastern District of Arkansas on June 27, 2022. (ECF

No. 1). It was transferred to this District on June 30, 2022. (ECF No. 3). On July 26, 2022,

Plaintiff was granted in forma pauperis (“IFP”) status. (ECF No. 9). That same day, the Court

entered an Order directing Plaintiff to submit an Amended Complaint on the court-approved §

1983 form for this District by August 16, 2022. (ECF No. 13). Plaintiff did so on August 4, 2022.

(ECF No. 14). On August 5, 2022, the Court entered an Order directing Plaintiff to submit a

Second Amended Complaint to correct deficiencies in his First Amended Complaint by August

26, 2022. (ECF No. 15). This Order was returned as undeliverable from the Arkansas Division

of Correction (“ADC”) Ouachita River Unit, indicating that Plaintiff was “out to court.” (ECF

No. 17). The deadline for Plaintiff to inform the Court of his new address was set for September

16, 2022. (Id.).

On October 3, 2022, the Court entered an Order noting the “out to court” circumstance of

the returned mail and directing Plaintiff to file his Second Amended Complaint by October 24,

2022. (ECF No. 19). When Plaintiff failed to submit his Second Amended Complaint by the

deadline, the Court entered a Show Cause Order, directing Plaintiff to Respond by November 22,

2022. (ECF No. 20). Neither Order was returned as undeliverable. Plaintiff filed his Response

on December 5, 2022, stating that his legal mail was not being delivered in a timely manner, and

he had not received any documents from the Court since he submitted his First Amended

Complaint. (ECF No. 21).

On December 5, 2022, the Court entered another Order directing Plaintiff to submit his

Second Amended Complaint. (ECF No. 22). This Order was not returned as undeliverable. On

December 27, 2022, Plaintiff submitted his Second Amended Complaint. (ECF No. 23). Due to

continued deficiencies with the Second Amended Complaint, the Court entered an Order on

January 27, 2023, explaining the deficiencies to Plaintiff, and directing him to submit a Third

Amended Complaint by February 17, 2023. (ECF No. 24). The Order was not returned as

undeliverable. This Order, as well as all the prior Orders directing Plaintiff to submit an Amended

Complaint, advised him that failure to submit his Amended Complaint by the deadline would result

in the dismissal of his case. (ECF No. 24 at 3). The Court also notes that Plaintiff named numerous

Defendants in each Amended Complaint and changed the named Defendants substantially with

each version of his Amended Complaint. As of the most recent version, Plaintiff has named, or

named and then terminated, 68 Defendants.

To date, Plaintiff has failed to submit his Amended Complaint, and 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 been given multiple opportunities to submit an Amended Complaint which

complies with the Local and Federal Rules of Civil Procedure and has failed to do so. Plaintiff

has failed to comply with a Court Order. 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’s Second Amended Complaint (ECF No. 23)

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 21st day of February 2023.

/s/ Barry A. Bryant

HON. BARRY A. BRYANT

UNITED STATES MAGISTRATE JUDGE