Neilton Gold v. Logan Edge

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FAYETTEVILLE DIVISION

NEILTON MARRICK GOLD PLAINTIFF

v. Civil No. 5:22-CV-05185-TLB-MEF

LOGAN EDGE, Deputy Officer;

MICHAEL SMITH, Deputy Sergeant; and

OFFICER PRUITT GARRET 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 Timothy L. Brooks, 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 comply with the Court’s orders.

I. BACKGROUND

Plaintiff initiated this matter on September 9, 2022, by filing a complaint generally alleging

that the Defendants used excessive force against him in violation of his constitutional rights when

he was detained at the Washington County Detention Center (“WCDC”). (ECF No. 1). That same

day, the Court directed the Clerk to file the Complaint and ordered Plaintiff to notify the Court if

his address changes within thirty (30) days of any such change. (ECF No. 3). This Order was not

returned as undeliverable.

On September 15, 2022, this Court granted Plaintiff’s application to proceed IFP. (ECF

No. 5). On September 22, 2022, the Court ordered service of the original complaint on the

Defendants. (ECF No. 7). On October 12, 2022, Plaintiff filed a Motion to voluntarily dismiss

certain defendants from this action. (ECF No. 9). On October 14, Plaintiff filed a Motion to

Appoint Counsel. (ECF No. 10). That same day, he also filed a Motion to Amend the Complaint.

(ECF No. 11). On October 24, 2022, Plaintiff filed two additional motions: a Motion for Default

Judgment and a Motion for Copies. (ECF Nos. 12-13). On October 26, 2022, Plaintiff filed a

Motion for a Subpoena. (ECF No. 14). On November 1, 2022, the Court denied Plaintiff’s motions

and directed him to submit an Amended Complaint by November 18, 2022. (ECF No. 15).

On November 10, 2022, the Court granted Defendants’ motion requesting 21 days from

the date that Plaintiff submits his amended complaint to file an answer. (ECF No. 18). On

November 17, 2022, Plaintiff filed his Amended Complaint. (ECF No. 19). Defendants

subsequently filed their Answer to the Amended Complaint on November 28, 2022. (ECF No.

20). That same day, the Court entered an Initial Scheduling Order directing that any motion for

summary judgment to be filed by April 27, 2023. (ECF No. 21).

On February 8, 2023, Plaintiff filed a motion to supplement the amended complaint. (ECF

No. 23). That Motion was denied. (ECF No. 24). The Court subsequently granted Defendants’

motion to extend the deadline for completing discovery. (ECF No. 26). On March 23, 2023,

Defendants filed a Motion to Compel discovery and memorandum in support. (ECF Nos. 27-28).

On April 7, 2023, Defendants filed a second motion to extend discovery deadlines and to extend

the deadline for submitting a summary judgment motion. (ECF No. 29). On April 10, 2023,

Plaintiff filed a notice of change of address. (ECF No. 30). On April 12, 2023, the Court granted

Defendants’ Motion to Compel, and it also extended the deadline for filing a motion for summary

judgment to July 5, 2023. (ECF No. 21).

On July 5, 2023, Defendants filed a Motion for Summary Judgment and Memorandum and

Statement of Facts in support. (ECF Nos. 32-34). On July 6, 2023, Defendants filed a supplement

to their statement of facts. (ECF No. 35). On July 7, 2023, the Court ordered Plaintiff to file a

response to Defendants’ Motion for Summary Judgment. (ECF No. 36). That Order included the

following specific instructions regarding the procedure for (and legal requirements of) a response

to a summary judgment motion:

At the summary judgment stage, a plaintiff cannot rest upon mere allegations and, instead,

must meet proof with proof. See Fed. R. Civ. P. 56(e). This means the Response must

include legal arguments, as well as affidavits, prison records, or other evidence establishing

that there is a genuine issue of material fact that must be resolved at a hearing or trial. The

affidavit must be based upon the personal knowledge of the person executing the affidavit

and must be either: (1) sworn and subscribed by a notary public; or (2) executed under

penalty of perjury, as provided for by 28 U.S.C. 1746.

Furthermore, Plaintiff must also separately file a Statement of Disputed Facts, which lists:

(a) any disagreement with the specifically numbered factual assertions contained in the

Statement of Undisputed Facts filed by the Defendant; and (b) any other disputed facts that

must be resolved at a hearing or trial.

If Plaintiff disputes any of the facts set forth by the Defendant in the Statement of

Undisputed Facts, each numbered paragraph must be identified that contains the fact in

dispute and, for each paragraph identified, explain why there is a dispute.

Plaintiff is advised that if he intends to rely up on any records or exhibits that have been

previously filed with the Court, Plaintiff must specifically refer to those documents by ECF

document and page numbers. The Court will not sift through the file to find support for

the factual contentions. See Crossley v. Georgia-Pacific Corp., 355 F.3d 1112, 1113-14

(8th Cir. 2004) (affirming the grant of summary judgment because a plaintiff failed to

properly refer to specific pages in the record that supported his position).

(ECF No. 36). Plaintiff’s response was due on July 28, 2023. This Order was returned as

undeliverable and marked “moved to Delta Regional Unit.” The Order was then re-sent to the

Delta Regional Unit in Dermott, Arkansas. (ECF No. 38).

When that deadline passed without Plaintiff submitting a response to Defendants’ Motion

for Summary Judgment, the Court issued an Order to Show Cause why this matter should not be

dismissed. (ECF No. 39). Plaintiff’s response to the Court’s show cause order was due August

25, 2023. Id. This Order has not been returned as undeliverable. Publicly accessible Arkansas

state records show that Plaintiff remains incarcerated in the Arkansas Division of Correction, Delta

Regional Unit, Dermott, AR. See Arkansas Department of Corrections, Inmate Search,

https://apps.ark.org/inmate_info/index.php (last accessed August 31, 2023). Plaintiff’s deadline

for responding to the Court’s show cause order has long passed and Plaintiff has failed to respond

or communicate with the Court in any way.

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), moreover, 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).

To order dismissal with prejudice under Rule 41(b), however, “is a drastic sanction which

should be exercised sparingly.” Brown, 806 F.2d at 803 (quoting Pardee v. Stock, 712 F.2d 1290,

1292 (8th Cir. 1983)). That said, “the district court’s exercise of this power is within the

permissible range of its discretion if there has been a clear record of delay or contumacious conduct

by the plaintiff.” Id. (quoting Haley v. Kansas City Star, 761 F.2d 489, 491 (8th Cir. 1985)

(internal quotations omitted)).

In considering a Rule 41(b) dismissal with prejudice, the Court must balance: (1) “the

degree of [Plaintiff’s] egregious conduct”; and, to a lesser extent, (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). Upon

review of a dismissal with prejudice, the Eighth Circuit considers: “whether in the particular

circumstances of the case the needs of the court in advancing a crowded docket and preserving

respect for the integrity of its internal procedures are sufficient to justify the harsh consequences

of forever denying a litigant his day in court.” Id. (internal quotation omitted). However, “the

district court need not have found that [plaintiff] acted in bad faith, only that he acted intentionally

as opposed to accidentally or involuntarily.” Id.

III. ANALYSIS

This matter has been pending for almost one year. Although Plaintiff initially prosecuted

his case and engaged in motion practice at the outset of this case, he has since failed to respond to

two court orders directing him to respond to the Defendants’ Motion for Summary Judgment. See

(ECF Nos. 36 & 39). The record, moreover, shows that Plaintiff’s address has changed since

Defendants filed their Motion for Summary Judgment. (ECF No. 38). Even though Plaintiff failed

to comply with the Court’s Order and Local Rules to timely update the court with any change of

address (ECF No. 3), the Court nevertheless re-sent the Court’s first order directing him to respond

to the Defendants’ Motion for Summary Judgment to his new address at the Delta Regional Unit,

Dermott, AR. (ECF No. 38). The Order was not returned as undeliverable from the Delta Regional

Unit. Further, the record shows that Plaintiff is aware of the requirement to timely update the

Court with any change of address because he previously submitted a notice of his change of

address. (ECF No. 30). However, despite being on notice of this requirement, and despite the

Court’s efforts to track him down, Plaintiff has failed to comply with two Court orders directing

him to respond to the Defendants’ Motion for Summary Judgment. On this record, the Court finds

that Plaintiff’s failure to respond has been intentional.

The Defendants, for their part, have expended considerable resources and energy in

preparing and submitting a Motion for Summary Judgment, along with a Statement of Indisputable

Material Facts and exhibits over 100 pages in length. (ECF No. 34). On balance, therefore, this

Court finds that circumstances warrant a dismissal with prejudice. Thus, pursuant to Federal Rule

of Civil Procedure 41(b) and Local Rule 5.5(c)(2), the undersigned recommends that this matter

BE DISMISSED WITH PREJUDICE.

IV. CONCLUSION

For the reasons discussed above, it is recommended that Plaintiff’s Amended Complaint

(ECF No. 19), and this action, be DISMISSED WITH 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 31st day of August 2023.

/s/

HON. MARK E. FORD

UNITED STATES MAGISTRATE JUDGE