Bryan v. Cradduck

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FAYETTEVILLE DIVISION

DONALD STEVEN BRYAN PLAINTIFF

v. Civil No. 5:23-cv-05232-TLB-MEF

OFFICER LANDON CRADDUCK;

OFFICER TIMOTHY TAYLOR;

CORPORAL MICHAEL SMITH; and

CORPORAL MULVANEY 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 (“IFP”). 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 this case on December 14, 2023. (ECF No. 1). At the time, Plaintiff was

incarcerated in the Washington County Detention Center.

On April 17, 2024, Plaintiff filed a notice of change of address indicating he had been

released from incarceration. (ECF No. 43). In accordance with the Court’s customary practice,

Plaintiff was directed to file a new IFP application to determine if he still qualified for IFP status.

(ECF No. 44). Plaintiff’s IFP application was due by May 8, 2024. Plaintiff did not file a new

IFP application.

On May 6, 2024, Defendants filed a Motion for Partial Summary Judgment. (ECF Nos.

1

45-46 & 49). The following day, an Order was entered directing Plaintiff to file a response by

May 8, 2024. (ECF No. 48). 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 Order would

result in his claims being dismissed. 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 Orders, a Show Cause Order was entered. (ECF No. 50). Plaintiff was given

until May 31, 2023, to respond. Plaintiff was advised that if he failed to respond by the deadline,

“this case shall be subject to dismissal.”

To date, Plaintiff has not filed a new IFP application, 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. 44, 48 & 50). 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

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

2

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.

Further, 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 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 in preparing their Motion for Summary Judgment.

Plaintiff then intentionally chose not to respond to this Motion even after being directed to do so

by the Court. Plaintiff was advised in three 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

he filed his change of address stating he was no longer incarcerated.

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

3

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 7th day of June 2024.

/s/

HON. MARK E. FORD

UNITED STATES MAGISTRATE JUDGE

4