Thatcher v. Holloway

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FAYETTEVILLE DIVISION

TIMOTHY JOSEPH THATCHER PLAINTIFF

v. Civil No. 5:24-cv-05070-TLB-MEF

SHERIFF SHAWN HOLLOWAY,

Benton County, Arkansas;

LIEUTENANT GREG HOBELMAN,

Benton County Detention Center (BCDC); and

LIEUTENANT TYLER ROSS, BCDC DEFENDANTS

REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

This is a civil rights action filed by the Plaintiff under 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 March 25, 2024. (ECF No. 1). An

Initial Scheduling Order was issued on July 16, 2024. (ECF No. 12). On December 13, 2024,

an Order was entered extending the discovery deadline and the summary judgment filing deadline.

(ECF No. 26). On February 12, 2025, the summary judgment filing deadline was extended to

February 27, 2025. (ECF No. 30).

On February 27, 2025, Defendants timely filed a Motion for Summary Judgment. (ECF

Nos. 31-33). The same day, an Order was entered directing Plaintiff to respond to the summary

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judgment motion by March 20, 2025. (ECF No. 34). 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 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. 35). Plaintiff was given until April 11, 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 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. 34 & 35). 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

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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

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 conducting discovery and preparing their 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 anyway.

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 failure to prosecute this case, his failure to obey the orders of the Court, and his failure

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to comply with Local Rule 5.5(c)(2).

Status of Referral: The referral terminates upon the filing of 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 21st day of April 2025.

/s/

HON. MARK E. FORD

UNITED STATES MAGISTRATE JUDGE

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