The opinion
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
DAVID CLARKSON CADWALLADER PLAINTIFF
v. Civil No. 5:24-cv-05107-TLB-MEF
JOHN KARAS, Karas Correctional Health
(KCH), Health Care Provider;
NURSE KELLIE HINELY, KCH;
JORDAN PRAVENAS, KCH Paramedic;
JAKE SMOTHERS, KCH Paramedic;
SHERIFF JAY CANTRELL, Washington County, Arkansas; and
TOM MULVANEY, Washington County Detention Center 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. 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 his Complaint to initiate this action on May 16, 2024. (ECF No. 1). After
Plaintiff filed an Amended Complaint, service was directed on the Defendants. (ECF No. 9). A
Bench Order was issued after all parties had answered. (ECF No. 15). The Bench Order gave
Defendants until September 23, 2024, to file a Motion for Summary Judgment on the issue of
exhaustion. On September 23, 2024, Separate Defendants Cantrell and Mulvaney filed a Motion
for Summary Judgment on the issue of exhaustion. (ECF Nos. 22-24). That same day, Plaintiff
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was directed to file a response to the Motion for Summary Judgment by October 15, 2024. (ECF
No. 25). 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.
After the Order directing Plaintiff to respond was returned as undeliverable, the Court
extended Plaintiff’s time to respond to November 5, 2024. (ECF No. 28). Plaintiff did not file
his summary judgment response. As a matter of procedural fairness and to give Plaintiff yet
another opportunity to comply with the Court’s Order, a Show Cause Order was entered. (ECF
No. 29). Plaintiff was given until December 3, 2024, 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 response to the Motion for Summary Judgment filed by
Separate Defendants Cantrell and Mulvaney 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. 28 & 29). 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
order.” Brown v. Frey, 806 F.2d 801, 803-04 (8th Cir. 1986) (emphasis added). Additionally,
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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.
Furthermore, 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 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, Separate Defendants Cantrell and Mulvaney expended resources in preparing their
Motions for Summary Judgment. Plaintiff then intentionally chose not to respond to the
Summary Judgment Motion even after being directed to do so by the Court in two separate
instances. Plaintiff was advised in both Court Orders that failure to respond would result in
dismissal of his case. Plaintiff has not communicated with the Court regarding the Motion for
Summary Judgment. However, rather than dismiss the entire case, the Court believes the
dismissal should be limited to Separate Defendants Cantrell and Mulvaney as they are the ones
who filed the Motion for Summary Judgment.
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II. CONCLUSION
For these reasons, it is recommended that, pursuant to Rule 41(b) of the Federal Rules of
Civil Procedure, all claims against Defendants Cantrell and Mulvaney be DISMISSED WITH
PREJUDICE based on Plaintiff’s intentional failure to prosecute this his claims against them; his
failure to obey the orders of the Court; and his failure to comply with Local Rule 5.5(c)(2). The
Clerk should be directed to terminate Defendants Cantrell and Mulvaney as Defendants.
The claims against Separate Defendants Karas, Hinely, Pravenas, and Smothers, remain
pending.
Status of Referral: This case should remain referred for all matters not
recommended for dismissal in this Report and Recommendation.
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 17th day of December 2024.
/s/
HON. MARK E. FORD
UNITED STATES MAGISTRATE JUDGE
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