The opinion
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
ANOUSITH MIKE INTHAVONG PLAINTIFF
v. Civil No. 2:22-cv-02179-PKH-MEF
SHERIFF JIMMY DEMONTE,
Crawford County, Arkansas;
CAPTAIN V. WINTERS; and
LIEUTENANT FIELDS DEFENDANTS
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
This is a civil rights action filed by the Plaintiff pursuant to 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
Plaintiff filed his Complaint to initiate this action on November 28, 2022. (ECF No. 1).
An initial scheduling order was issued on March 14, 2023. (ECF No. 14). On June 14, 2023,
Plaintiff filed a notice of change of address. (ECF No. 16).
On August 11, 2023, Defendants timely filed a Motion for Summary Judgment. (ECF
Nos. 20-22). The same day, an Order was entered directing Plaintiff to respond to the summary
judgment motion by September 26, 2023. (ECF No. 23). Plaintiff was given explicit instructions
regarding what was required by 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.
Plaintiff did not file a response to the Motion for Summary Judgment. On September 7,
2023, a Show Cause Order was entered. (ECF No. 24). Plaintiff was given until September 28,
2023, to show cause why he failed to obey the Orders of the Court. Plaintiff was advised that if
he failed to respond to the Show Cause Order, the case shall be subject to dismissal.
To date, Plaintiff has not filed a response to the Defendants’ pending Motion for Summary
Judgment or a response to the Show Cause Order. He has not requested an extension of time to
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 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
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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
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 chose not to respond to the Motion or to the Court’s Show
Cause Order. Plaintiff has failed to prosecute his action which has caused the unnecessary
expenditure of judicial resources.
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
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are reminded that objections must be both timely and specific to trigger de novo review by
the district court.
DATED this 5th day of October 2023.
/s/
HON. MARK E. FORD
UNITED STATES MAGISTRATE JUDGE
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