Neice v. City of Van Buren, Arkansas

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FORT SMITH DIVISION

RICHARD WILLIAM NEICE PLAINTIFF

v. Civil No. 2:24-CV-02027-PKH-MEF

CITY OF VAN BUREN, ARKANSAS DEFENDANT

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

Plaintiff, Richard William Neice, a prisoner, filed the above-captioned civil rights action

pursuant to 42 U.S.C. § 1983, generally alleging violations of his constitutional rights while

detained at the Crawford County Justice Center (“CCJC”). 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.

Currently before the Court is Plaintiff’s failure to comply with the Court’s orders directing

him to either submit a complete in forma pauperis (“IFP”) application or pay the full filing fee

(ECF Nos. 3, 5, 8) and the Court’s order directing him to submit a second amended complaint

(ECF No. 8).

I. BACKGROUND

Plaintiff filed his original complaint on February 23, 2024. (ECF No. 1). Because Plaintiff

is a prisoner, his IFP application is governed by 28 U.S.C. § 1915 and his complaint is subject to

preservice review pursuant to 28 U.S.C. § 1915A(a).

In this case, Plaintiff’s initial IFP application did not meet the requirements of 28

U.S.C. § 1915 because it did not include a certified copy of his prison trust found account statement

(or the institutional equivalent). See 28 U.S.C. § 1915(a)(2). Thus, on February 23, 2024, the

Court ordered that Plaintiff either submit a complete IFP application, including the required form,

or pay the full filing fee of $405 by March 15, 2024, failing which this matter would be subject to

dismissal for failure to prosecute. (ECF No. 3). After noting potential legal and factual

deficiencies with Plaintiff’s original complaint, the Court also ordered Plaintiff to submit an

amended complaint by that same deadline, again, failing which this matter would be subject to

dismissal. Id. To assist Plaintiff in complying with the Court’s order, the Clerk mailed Plaintiff a

copy of this District’s 1983 Prisoner Litigation Guide, a blank IFP application, and a blank 1983

complaint form. This Order was not returned as undeliverable.

On February 27, 2024, this Court entered an order specifically highlighting the deficiency

with Plaintiff’s IFP application and ordered him to either submit a complete IFP application with

the required form or pay the full filing fee of $405, by March 19, 2024, failing which this matter

would be subject to dismissal. (ECF No. 5). This Order was also not returned as undeliverable.

On March 4, 2024, Plaintiff submitted an amended complaint and IFP application. (ECF

Nos. 6, 7). Unfortunately, Plaintiff’s IFP application was again deficient because while it

contained a certificate of inmate account and assets form, that form was not signed by an

authorized prison official as required by 28 U.S.C. § 1915(a)(2). (ECF No. 7). Further, Plaintiff’s

Amended Complaint alleges that he was denied medical treatment. (ECF No. 6). It also claims

that his right to a speedy trial was violated and that he is being subject to false imprisonment. Id.

But Plaintiff does not specify what medical treatment he required, or who denied it. Id. Plaintiff

also does not specifically identify any person allegedly responsible for denying his speedy trial

right. Id. Accordingly, this Court again ordered Plaintiff to file a complete IFP application or pay

the full filing fee of $405 by March 22, 2024, failing which this matter would be subject to

dismissal for failure to prosecute. (ECF No. 8). That order also identified the deficiencies with

Plaintiff’s amended complaint and directed him to submit a second amended complaint by that

same deadline. Id. That Order was not returned as undeliverable.

On March 11, 2024, Plaintiff submitted his third IFP application. (ECF No. 9). Plaintiff’s

third IFP application, however, fares no better than the first two—it is deficient because it does

not include a certificate of inmate account and assets form signed by an authorized prison official

as required by law. Id. The deadline for submitting a complete IFP application or to pay the initial

partial filing fee has now passed. The deadline for submitting a second amended complaint has

also now passed. But Plaintiff has not paid the full filing fee or submitted a complete IFP

application, nor has he filed a second amended complaint.

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), 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).

III. ANALYSIS

Here, this Court has ordered Plaintiff no fewer than three times to either pay the full filing

fee or submit a complete IFP application to initiate this action. (ECF Nos. 3, 5, 8). Each time, the

Court has also explained to Plaintiff that a complete IFP application includes a certificate of inmate

account and assets form signed by an authorized prison official. Id. Nevertheless, although

Plaintiff has submitted two IFP applications in response to the Court’s orders, those IFP

applications are deficient because neither one includes the signed certificate of inmate accounts

and assets form as required by law. (ECF Nos. 7, 9). Further, although this Court ordered Plaintiff

to submit a second amended complaint after noting deficiencies with Plaintiff’s Amended

Complaint, (ECF No. 8), Plaintiff has not done so. The deadline for complying with these Court

orders has long passed and Plaintiff has failed to submit a complete IFP application or to pay the

full filing fee, and he has failed to submit a second amended complaint. The Court’s orders,

moreover, have not been returned undeliverable. Plaintiff, therefore, has failed to prosecute this

case. Accordingly, pursuant to Federal Rule of Civil Procedure 41(b) and Local Rule 5.5(c)(2), it

is recommended that this matter be dismissed without prejudice for failure to comply with the

Court’s Local Rules and Orders and for failure to prosecute this case.

IV. CONCLUSION

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

(ECF No. 6) be DISMISSED WITHOUT 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 1st day of April 2024.

/s/

HON. MARK E. FORD

UNITED STATES MAGISTRATE JUDGE