Cochran v. Brown

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FAYETTEVILLE DIVISION

JOSIAH TRESTEN COCHRAN PLAINTIFF

v. Civil No. 5:22-cv-05252-PKH-MEF

DEPUTY CHRISTIAN BROWN,

Benton County Detention Center;

DR. ROBERTO SAEZ,

Turn Key Health Clinics, LLC; and

NURSE TRACY SANDERS,

Turn Key Health Clinics, LLC 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 P. K. Holmes, III, Senior 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

On July 7, 2023, Dr. Saez filed a Motion to Dismiss or, in the alternative, Motion for

Judgment on the Pleadings. (ECF No. 35). That same day, an Order was entered directing

Plaintiff to respond to the Motion by July 28, 2023. (ECF No. 37). Plaintiff was advised that

failure to “timely and properly comply with this Order shall result in the dismissal of this action

pursuant to Local Rule 5.5(c)(2).” Plaintiff failed to respond to the Motion and a Show Cause

Order was entered on August 8, 2023. (ECF No. 42). Plaintiff’s response was due by August

29, 2023. Plaintiff was advised that failure to respond by the deadline would subject the case to

dismissal. Plaintiff has failed to respond to the Motion or the Show Cause Order.

Nurse Sanders filed a Motion to Dismiss on July 25, 2023. (ECF No. 38). That same

day, Plaintiff was advised that he either had to file a response or an Amended Complaint addressing

the deficiencies identified in the Motion by August 15, 2023. (ECF No. 40). Plaintiff was

advised that failure to comply with the Order “shall subject the case to dismissal.” When no

response or Amended Complaint was filed, a Show Cause Order was entered. (ECF No. 43).

Plaintiff’s response was due by September 8, 2023. Plaintiff was advised that failure to respond

would result in the dismissal of the case. On August 18, 2023, Defense counsel filed a notice

stating that the certified mail containing Nurse Sanders’ Motion to Dismiss was still in transit.

(ECF No. 44). A second copy was sent to Plaintiff that day.

To give Plaintiff additional time to respond, the Court has delayed in acting on the Motion

to Dismiss; however, more than a month has now passed since Plaintiff was sent a second copy of

the Motion to Dismiss. Plaintiff has not contacted the Court in any way. Plaintiff has failed to

respond to the Motion, the Court’s Order directing the filing of a response or Amended Complaint,

or the Show Cause Order.

Plaintiff has not requested additional time to respond to the Motions or the Court’s Orders.

No mail has been returned as undeliverable. Plaintiff has failed to comply with the Court’s Orders

(ECF Nos. 37, 40, 42, & 43). In each Order, Plaintiff was advised that failure to respond would

result in the dismissal of the case.

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, it is recommended that:

• The Motion to Dismiss or, in the alternative, Motion for Judgment on the Pleadings

filed by Dr. Saez (ECF No. 35) be GRANTED.

• The Motion to Dismiss filed by Nurse Sanders (ECF No. 38) be GRANTED.

And,

• Pursuant to Fed. R. Civ. P. 41(b), the Plaintiff’s Complaint (ECF No. 1) be

DISMISSED WITHOUT PREJUDICE based on Plaintiff’s 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).

If adopted, this Report and Recommendation would dismiss the entire case.

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 27th day of September 2023.

/s/

HON. MARK E. FORD

UNITED STATES MAGISTRATE JUDGE