The opinion
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION
CHESTER SERGIO OLSON PLAINTIFF
v. Civil No. 3:23-cv-03028-TLB-MEF
SHERIFF DANIEL KLATT DEFENDANT
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 June 7, 2023. (ECF No. 1). A
Bench Order was entered on July 23, 2023, advising the Defendant that if he intended to raise the
issue of exhaustion as a defense he must do so by September 5, 2023. (ECF No. 9). Defendant
notified the Court he did not intend to raise this issue. (ECF No. 10). An Initial Scheduling
Order was entered setting forth the deadlines for discovery and for filing a summary judgment
motion on the merits. (ECF No. 11).
On January 24, 2024, Defendant timely filed a Motion for Summary Judgment. (ECF
Nos. 23-25). The same day, an Order was entered directing Plaintiff to respond to the summary
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judgment motion by February 14, 2024.1 (ECF No. 26). 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
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. As a matter of
procedural fairness and to give Plaintiff yet another opportunity to comply with the Court’s Order,
a Show Cause Order was entered. (ECF No. 27). Plaintiff was given until March 13, 2024, to
show cause why he failed to respond to the Summary Judgment Motion. 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 responses to the Defendant’s pending Motion for Summary
Judgment or 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. 26 & 27). 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
1 The Court notes the Plaintiff had been released from incarceration in October of 2023. (ECF
No. 16).
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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 a 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 Defendant; and (3), the Court’s
ability to administer justice. Rodgers v. Curators of Univ. 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, Defendant expended resources conducting discovery and preparing his Motion for
Summary Judgment. Plaintiff then chose not to respond to the Motion even after being directed
to do so by the Court. Plaintiff was advised in two separate Court Orders that failure to respond
would result in dismissal of his case. Plaintiff has not communicated with the Court in any way
since October of 2023.
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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 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 18th day of March 2024.
/s/
HON. MARK E. FORD
UNITED STATES MAGISTRATE JUDGE
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