The opinion
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
CLAY THOMAS GRESHAM PLAINTIFF
v. Civil No. 1:23-cv-01098
NURSE KASEY SANFORD;
DR. DEANNA HOPSON;
CAPTAIN LISA WORLEY; and
OFFICER JARRETT DAVIS DEFENDANTS
ORDER
Before the Court is Plaintiff’s failure to comply with Court Orders and to prosecute this
matter. On October 30, 2023, Plaintiff Clay Thomas Gresham, initiated this pro se civil rights
action pursuant to 42 U.S.C. § 1983. ECF No. 1. When Plaintiff initiated this action, he requested
to proceed in forma pauperis (“IFP”). ECF No. 2. That same day, the Honorable Barry A. Bryant,
United States Magistrate Judge for the Western District of Arkansas, granted Plaintiff’s request to
proceed IFP. ECF No. 3.
On November 2, 2023, Judge Bryant ordered that Turn Key Health Clinics, LLC (“Turn
Key”), be added as a defendant to this action for the purposes of serving Defendants Sanford and
Hopson (“Medical Defendants”), and further ordered that the Complaint be served on Defendants.
ECF No. 7. On November 30, 2023, Counsel entered her appearance on behalf of Defendant Turn
Key, provided service information for the individual Medical Defendants, and requested that
Defendant Turn Key be dismissed from this action. ECF Nos. 10 & 11.
On December 5, 2023, Judge Bryant ordered that the individual Medical Defendants be
served at the address Turn Key provided, ordered that Turn Key be terminated as a defendant to
this action, and denied Turn Key’s Motion to Dismiss as moot, noting that Plaintiff identified the
Medical Defendants in their individual and official capacities. ECF No. 12. On December 7,
2023, service documents were filed showing that Defendants Tibbs and Worley (“County
Defendants”) were served on November 9, 2023. County Defendants deadline to file an answer
or otherwise responsive pleading expired on November 30, 2023. ECF No. 14.
On December 12, 2023, Judge Bryant ordered County Defendants to show cause as to why
they should not be found in default for failing to answer or respond to the lawsuit within 21-days
of service as previously ordered. ECF No. 16. On December 12, 2023, Plaintiff filed a notice of
change of address. ECF No. 17. On December 15, 2023, County Defendants responded to the
order to show cause, requesting to set aside the summons for Defendant C.O. Tibbs and requesting
leave to file an answer out of time. ECF Nos. 18-22. On December 20, 2023, Judge Bryant granted
County Defendants’ Motion to Set Aside Service of Process on Defendant C.O. Tibbs, granted
Defendant Worley’s Motion to Answer Out of Time, and directed Defendant Worley to respond
to the lawsuit by January 10, 2024. ECF No. 25. That order also directed Defendant Worley to
identify the name of the individual who Plaintiff alleges put him in a “pickle suit” on or about
August 4, 2023. Id. That same day, Defendant Worley submitted her Answer. ECF No. 26. On
December 28, 2023, Medical Defendants filed their Answer. ECF No. 28. That same day, mail
originally sent to Plaintiff at the Union County Detention Center (“UCDC”) was returned as
undeliverable, and was then re-mailed to Plaintiff’s updated address in Hot Springs, Arkansas.
ECF No. 29.
On January 17, 2024, Judge Bryant ordered Defendants to either file a motion for summary
judgment on the issue of whether Plaintiff first exhausted his administrative remedies in
accordance with 42 U.S.C. § 1997e(a) by March 4, 2024, or promptly file a notice saying they did
not intend to pursue such a defense at trial. ECF No. 32. On that same day, Judge Bryant ordered
Defendant Worley to show cause as to why she should not be found in contempt for failing to
comply with the order directing her to identify the county official who placed Plaintiff in a “pickle
suit” on August 4, 2023. ECF No. 33. On January 24, 2024, Defendant Worley responded to the
show cause order, identifying Officer Jarrett Davis as the official who placed Plaintiff in a “pickle
suit” on August 4, 2023. ECF No. 34. The next day, Judge Bryant ordered that Defendant C.O.
Tibbs be terminated as a defendant to this action, that Defendant Jarrett Davis be identified as a
defendant to this action, and that Defendant Davis be served with the Complaint. ECF No. 35. On
February 14, 2024, Defendant Davis filed an Answer. ECF No. 37. On March 1, 2024, Medical
and County Defendants filed a joint notice stating that they did not intend to pursue summary
judgment on the issue of exhaustion. ECF No. 39. On March 5, 2024, Judge Bryant issued an
initial scheduling order, directing, among other things, that any motion for summary judgment on
the merits be submitted by August 1, 2024. ECF No. 40.
On May 3, 2024, Medical Defendants filed a Motion to Compel Discovery Requests and
Motion to Deem Defendants’ Requests for Admissions Admitted, on the grounds that Plaintiff
failed to respond to their discovery requests within 30 days. ECF No. 43. On May 6, 2024, Judge
Bryant ordered Plaintiff to respond to Medical Defendants’ motion by May 20, 2024, failing which
this matter would be subject to dismissal for failure to prosecute. ECF No. 45. Plaintiff’s mail
was not returned as undeliverable. That deadline passed and Plaintiff failed to respond. On May
28, 2024, therefore, Judge Bryant ordered Plaintiff to show cause as to why this matter should not
be dismissed for failure to prosecute. ECF No. 46. Plaintiff’s show cause response was due by
June 18, 2024. Id. That Order was not returned as undeliverable.
The deadline to respond to the Court’s Show Cause Order has now passed, and Plaintiff
has failed to respond or communicate with this Court in any way.
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 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).
Plaintiff has failed to prosecute this case and failed to comply with two court orders. See
ECF Nos. 17 & 20. Therefore, pursuant to Federal Rule of Civil Procedure 41(b) and Local Rule
5.5(c)(2), the Court finds that this case should be dismissed. Accordingly, Plaintiff’s Complaint
(ECF No. 1) is hereby DISMISSED WITHOUT PREJUDICE.
IT IS SO ORDERED, this 17th day of July, 2024.
/s/ Susan O. Hickey
Susan O. Hickey
Chief United States District Judge