Daniels v. Pickett

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

HOT SPRINGS DIVISION

JOSEPH TERRELL DANIELS PLAINTIFF

v. Civil No. 6:23-cv-06105-SOH-CDC

SERGEANT COGNEY PICKETT, et. al. DEFENDANTS

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 obey two Court Orders and

failure to prosecute this case.

I. BACKGROUND

Plaintiff filed his Complaint on October 17, 2023. (ECF No. 1). On November 17, 2023,

the undersigned entered a preservice screening Report and Recommendation as required by the

Prison Litigation Reform Act. (ECF No. 6). On November 27, 2023, Plaintiff submitted a Motion

to Amend his Complaint. (ECF No. 7). On February 12, 2024, Chief Judge Hickey adopted the

Report and Recommendation. (ECF No. 8). Plaintiff’s claims concerning his disciplinary charge,

conviction, and sentence were dismissed. (Id.). Plaintiff’s conditions of confinement claims

remained for further review. (Id.). Plaintiff’s Motion to Amend was denied on February 13, 2024,

because Plaintiff requested leave to amend claims that had been dismissed. (ECF No. 9). Plaintiff

was granted leave to amend his Complaint concerning claims which had survived screening. (Id.).

Plaintiff submitted his Amended Complaint on February 29, 2024. (ECF No. 10).

On June 28, 2024, Defendants submitted their Motion to Dismiss for Failure to State a

Claim. (ECF No. 22). On July 1, 2024, the Court entered an Order directing Plaintiff to submit

his Response to the Motion by July 22, 2024. (ECF No. 24). When Plaintiff failed to do so, the

Court entered a Show Cause Order directing Plaintiff to submit his Response by August 20, 2024.

(ECF No. 25). Both Orders advised Plaintiff that failure to respond by the deadline would result

in the dismissal of his case. (ECF Nos. 24, 25).

To date, Plaintiff has failed to respond to either Order. Plaintiff has not communicated

with the Court to request an extension of time to submit either response.

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 two Court Orders. 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 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 Amended Complaint (ECF No. 10) be

DISMISSED WITHOUT PREJUDICE.

Referral Status: This case should not remain referred as all matters have been

recommended for dismissal in this Report and Recommendation

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 3rd day of September 2024.

/s/ Christy Comstock

HON. CHRISTY COMSTOCK

UNITED STATES MAGISTRATE JUDGE