McElroy v. Gentry

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

TEXARKANA DIVISION

JAMES McELROY PLAINTIFF

v. Civil No. 4:22-cv-04085-SOH-BAB

SHERIFF ROBERT GENTRY DEFENDANT

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

This is a civil rights action filed pursuant to 42 U.S.C. § 1983. Pursuant to the provisions

of 28 U.S.C. § 636(b)(1) and (3), the Honorable Susan O. Hickey, Chief 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 participate in discovery and

failure to prosecute this case. Also before the Court is Defendant’s Motion to Dismiss. (ECF No.

39).

I. BACKGROUND

Plaintiff filed his Complaint on September 13, 2022. (ECF No. 1). He was directed to file

an Amended Complaint and did so on October 4, 2022. (ECF Nos. 2, 4). The Initial Scheduling

Order for the case was entered on October 30, 2023. (ECF No. 26). This Order advised Plaintiff

that Defendant had been granted leave to take his deposition, and “[t]he failure of the Plaintiff to

attend, be sworn, and answer appropriate questions may result in sanctions, including dismissal of

the action pursuant to Fed. R. Civ. P. 37.” (Id. at 2).

On February 29, 2024, Defendant filed a Motion to extend the discovery and dispositive

motion deadlines in the case. (ECF No. 29). As grounds, Defendant’s counsel stated he was in

the process of scheduling Plaintiff’s deposition with the Arkansas Division of Correction (“ADC”)

when the ADC informed him that Plaintiff had been paroled. (Id.). The Motion was granted, and

the discovery deadline was set for April 12, 2024, with the dispositive motion deadline set for May

13, 2024. (ECF No. 31).

On April 3, 2024, Defendant filed a Motion for Leave to Withdraw his Notice of No Intent

to File a Motion for Summary Judgment based on Exhaustion, and to submit a Motion for

Summary Judge including arguments on both administrative exhaustion and the merits. (ECF No.

35). This Motion was granted on April 5, 2024. (ECF No. 35). On April 9, 2024, Plaintiff

submitted a document which filed as a Motion for Extension of Time to Complete Discovery and

Dispositive Motion Deadlines. (ECF No. 36). As grounds for the Motion, Plaintiff stated he was

approached about a deposition with “short notice” and had no time to prepare. He also stated he

was not aware that he would not be appointed counsel and requested time to find legal assistance.

(ECF No. 36). Defendant filed his Response the same day. (ECF No. 37). Plaintiff’s Motion was

denied on April 11, 2024. (ECF No. 38). The Court notes that Plaintiff failed to file any motion

requesting appointment of counsel during the pendency of this case and nothing in the District’s

Prisoner Litigation Guide or any Court Order indicates that appointed counsel will be provided.

Defendant filed his Motion to Dismiss on April 17, 2024. (ECF No. 39). As grounds for

the Motion, Defendant states Plaintiff was contacted about and given ample notice for a deposition

to be held by Zoom videoconference on April 3, 2024. (Id. at 1). Plaintiff appeared on the Zoom

videoconference and was advised that Defendant’s counsel was about to take his deposition. (Id.).

Plaintiff then disconnected from the Zoom videoconference and never reconnected. (Id.). The

deposition transcript indicated that Defendant’s counsel waited five minutes for Plaintiff to

reconnect, then recorded his refusal into the transcript record. Plaintiff did not attempt to reconnect

during that time. (ECF No. 39-1). Defendant argues the disconnection was intentional and “an

attempt to avoid being deposed, again, in this lawsuit.” (Id.). He further notes that Plaintiff never

requested appointed counsel and never stated Defendant’s counsel that he would refuse to be

deposed, despite “ample notice” concerning the deposition. (Id.). Defendant argues this refusal

to be deposed has prejudiced him and asks that Plaintiff’s case be dismissed for “Plaintiff's failure

to prosecute, failure to comply with the Federal Rules of Civil Procedure, and, most notably,

Plaintiff’s failure to comply with the Court’s Scheduling Order.” (Id.). In the alternative,

Defendant asks that Plaintiff be ordered to reimburse him for reasonable costs incurred, including

attorney’s fees, the matter be stayed until those costs are paid, and Plaintiff be ordered, once again,

to appear for - and participate in – his deposition. (Id. at 2).

On April 18, 2024, the Cour entered an Order directing Plaintiff to submit a Response to

the Motion and to Show Cause for his failure to comply with discovery. (ECF No. 41). Plaintiff

was given until May 9, 2024, to provide his Response. (Id.). The Order advised Plaintiff that

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

without prejudice, pursuant to Local Rule 5.5(c)(2).” (Id.). This Order was not returned as

undeliverable. To date, Plaintiff has failed to submit his Response, and has not otherwise

communicated with the Court since April 9, 2024.

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

Plaintiff has failed to comply with Court Orders. Plaintiff has willfully failed to comply

with the discovery process, including intentionally disconnecting from a scheduled video

deposition to avoid being deposed. Plaintiff has failed to prosecute this matter. Accordingly,

pursuant to Federal Rule of Civil Procedure 41(b) and Local Rule 5.5(c)(2) Plaintiff’s Amended

Complaint should be dismissed without prejudice for failure to comply with the Court’s Local

Rules and Orders and failure to prosecute this case.

IV. CONCLUSION

Accordingly, it is recommended that Plaintiff’s Amended Complaint (ECF No. 4) be

DISMISSED WITHOUT PREJUDICE.

The parties have fourteen 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 20th day of May 2024.

/s/ Barry A. Bryant

HON. BARRY A. BRYANT

UNITED STATES MAGISTRATE JUDGE