The opinion
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
COLE ALLEN MITCHELL PLAINTIFF
v. Civil No. 2:24-cv-02109-MEF
OFFICER DALTON WAGGONER DEFENDANT
MEMORANDUM OPINION
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. The parties have consented to the jurisdiction of the
undersigned. (ECF No. 14). 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 August 29, 2024. (ECF No. 1). An
initial scheduling order was issued on October 29, 2024. (ECF No. 16). On February 24, 2025,
Defendant timely filed a Motion for Summary Judgment. (ECF Nos. 17-19). The following day,
an Order was entered directing Plaintiff to respond to the summary judgment motion by March 18,
2025. (ECF No. 20). 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: (a) all the
facts set forth by the Defendants in the summary judgment papers being deemed admitted and/or
(b) the case would be subject to dismissal.
Plaintiff did not file his summary judgment response. As a matter of procedural fairness
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and to give Plaintiff yet another opportunity to comply with the Court’s Orders, a Show Cause
Order was entered on March 19, 2025. (ECF No. 22). Plaintiff was given until April 9, 2025, 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 Defendant’s 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. 20 & 22). 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,
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
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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, the Defendant expended resources conducting discovery and preparing his Motion
for Summary Judgment. Plaintiff then intentionally chose not to respond to the Motion even after
being directed to do so by the Court in two separate instances. Plaintiff has not communicated
with the Court in any way.
II. CONCLUSION
For these reasons, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, this case
will by separate judgment entered this same day be DISMISSED WITH PREJUDICE based on
Plaintiff’s intentional 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).
DATED this 21st day of April 2025.
/s/
HON. MARK E. FORD
UNITED STATES MAGISTRATE JUDGE
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