Opinion

Olson v. Klatt

Court
District Court, W.D. Arkansas
Filed
Mar 18, 2024
Cited by
0 cases
Authority
More cited than 31.2%

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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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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