The opinion
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION
BRADLEY THOMAS UREN PLAINTIFF
v. Civil No. 3:22-cv-03049-TLB-MEF
SERGEANT T. MAZE;
SERGEANT C. MAPLE;
SERGEANT K. JAMES;
LIEUTENANT S. DENNIS; and
SHERIFF J. MONTGOMERY DEFENDANTS
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 Court’s Orders.
I. DISCUSSION
Plaintiff filed his Complaint to initiate this action on September 13, 2022. (ECF No. 1).
An initial scheduling order was issued on November 21, 2022. (ECF No. 11).
On April 20, 2023, Defendants timely filed a Motion for Summary Judgment. (ECF Nos.
12-14). The following day, an Order was entered directing Plaintiff to respond to the summary
judgment motion by May 12, 2023. (ECF No. 15). Plaintiff was given explicit instructions
regarding what was required of him to file a response in accordance with Rule 56 of the Federal
Rules of Civil Procedure. In the same Order, Plaintiff was advised that failure to respond to the
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Order would result in: (a) all the facts set forth by the Defendants in the summary judgment papers
being deemed admitted and/or (b) the case would be subject to dismissal.
On May 31, 2023, a Show Cause Order (ECF No. 17) was entered when Plaintiff failed to
file a response to the Summary Judgment Motion. Plaintiff’s response to the Show Cause Order
was due by June 21, 2023. Instead of responding to the Show Cause Order, Plaintiff filed a
Motion for Appointment of Counsel (ECF No. 18). The Motion was denied (ECF No. 19).
Plaintiff then filed a second Motion for Appointment of Counsel (ECF No. 20) and a Motion for
an Extension of Time to Respond to the Summary Judgment Motion (ECF No. 21). In these
Motions, Plaintiff indicated he did not understand how to respond to a summary judgment motion
and also needed assistance in obtaining discovery. In denying the second Motion for
Appointment of Counsel, the Court noted Plaintiff had not sought the Court’s assistance in
obtaining discovery documents during the discovery period as set forth in the Initial Scheduling
Order. Further, Plaintiff did not request counsel until after he failed to respond both the Summary
Judgment Motion and the Show Cause Order. Plaintiff was granted an extension of time until
July 18, 2023, to respond to the Summary Judgment Motion. (ECF No. 23).
Once again, Plaintiff did not file his summary judgment response. As a matter of
procedural fairness and to give Plaintiff yet another opportunity to comply with the Court’s Orders,
a Show Cause Order (ECF No. 24) was entered. Plaintiff was given until August 15, 2023, to
respond. Plaintiff was advised that if he failed to respond by the deadline, “this case shall be
subject to dismissal.”
To date, Plaintiff has not responded to the Defendants’ pending Motion for Summary
Judgment or responded to the Show Cause Order. He has not requested an extension of time to
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file his responses. No mail has been returned as undeliverable. Plaintiff has failed to comply
with the Court’s Orders. (ECF Nos. 23 & 24). Plaintiff was advised in each of the above-
mentioned Orders that failure to comply would subject the case to dismissal.
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 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 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.
Furthermore, a dismissal pursuant to Rule 41(b) operates as an adjudication on the merits
unless it is otherwise specified. Fed. R. Civ. P. 41(b); Brown, 806 F.2d at 803. When
considering Rule 41(b) dismissal, the Court must balance: (1) “the degree of [Plaintiff’s] egregious
conduct”; (2) the adverse impact of the conduct on the Defendants; and (3), the Court’s ability to
administer justice. Rodgers v. Curators of University of Missouri, 135 F.3d 1216, 1219 (8th Cir.
1998) (internal quotations omitted). In Rodgers, the Eighth Circuit provides the standard the
Court must consider before dismissing with prejudice for failure to prosecute:
Dismissal with prejudice is an extreme sanction and should be used only in cases
of willful disobedience of a court order or . . . persistent failure to prosecute a
complaint. [The Court must consider] . . . whether in the particular circumstances
of the case, the needs of the court in advancing a crowded docket and preserving
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respect for the integrity of its internal procedures are sufficient to justify the harsh
consequences of forever denying a litigant of his day in court. However, the
[Court] need not [find] that appellant acted in bad faith, only that he acted
intentionally as opposed to accidentally or involuntarily. Id.
Here, Defendants expended resources conducting discovery and preparing their Motion for
Summary Judgment. Plaintiff then elected not to respond to this Motion even after being directed
to do so by the Court in two separate instances. The Motion for Summary Judgment has been
pending since April 20, 2023. Plaintiff was advised in three separate Court Orders that failure to
respond would result in dismissal of his case. Plaintiff has not communicated with the Court in
any way after the Court granted him an extension of time to respond to Defendants’ Motion for
Summary Judgment.
II. CONCLUSION
For these reasons, it is recommended that, pursuant to Rule 41(b) of the Federal Rules of
Civil Procedure, this case be DISMISSED WITH PREJUDICE based on Plaintiff’s intentional
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).
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 28th day of August 2023.
/s/
HON. MARK E. FORD
UNITED STATES MAGISTRATE JUDGE
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