Franks v. Perry

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FORT SMITH DIVISION

MICHAEL JAMES FRANKS PLAINTIFF

v. Civil No. 2:24-cv-02115-TLB-MEF

SHERIFF DANIEL PERRY

(Crawford County, Arkansas);

CHIEF OF POLICE JOSH WINFORD;

DEPUTY ZAKARY KING;

OFFICER WILLIAMS1

(Dyer Police Department);

CORPORAL BRANDON CHANCEY

(Crawford County Sheriff’s Department) DEFENDANTS

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

This is a civil rights action filed under 42 U.S.C. § 1983. 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.

Currently before the Court is Plaintiff’s failure to obey Court Orders and failure to prosecute this

case. Also before the Court are Motions to Dismiss by Defendants Winford, Perry, Chancy and

King. (ECF Nos. 18, 35, 40).

I. BACKGROUND

Plaintiff filed his Complaint on September 10, 2024.2 (ECF No. 1). At the time Plaintiff

filed his Complaint, he was incarcerated in the Crawford County Detention Center. (Id.). On

October 10, 2024, the undersigned entered a Report and Recommendation pursuant to 28 U.S.C.

§ 1915A. (ECF No. 7). It was noted that Plaintiff raised two claims in his Complaint. For his

1 To date, the Court has been unable to effect service upon Defendant Williams.

2 The Complaint was mailed on September 6, 2024. (ECF No. 1 at 13).

first claim, Plaintiff alleges he was arrested without investigation and with the use of excessive

force on May 20, 2021. (Id. at a 1-2). He also alleges that his elderly and infirm parents were

assaulted and injured by Defendants during that same arrest. (Id.). For his second claim, Plaintiff

alleges he was wrongfully imprisoned from May 20, 2021, through September 8, 2021. (Id.).

Plaintiff states that after 111 days of wrongful confinement, the charges against him were

dismissed and he was released.3 Plaintiff alleges that any investigation into the matter would have

dispelled any thought of arresting him, but the Defendants did not do so. (Id.). It was

recommended that Plaintiff’s first claim be dismissed because the claim was time-barred under the

statute of limitations. (Id. at 3-4). This Report and Recommendation was adopted in its entirety

by Order entered on October 29, 2024. (ECF No. 9).

On December 11, 2024, Defendant Winford submitted a Motion to Dismiss Based on

Qualified Immunity and Violation of the Statute of Limitations. (ECF No. 18). Defendant

Winford argues that Plaintiff’s claim for wrongful imprisonment contains, “no factual allegations

regarding Winford’s conduct are present, much less any allegations of constitutional rights

violations.” (ECF No. 19 at 2). Defendant Winford’s argument concerning the statute of

limitations focuses on Plaintiff’s arrest date. He argues that Plaintiff identifies Winford only as

the arresting officer, and the arrest took place on May 20, 2021. (Id. at 1-3). Plaintiff submitted a

Response to Defendant Winford’s Motion on January 16, 2025. (ECF No. 25). In his Response,

Plaintiff addresses his first claim, which was dismissed upon preservice screening. (Id. at 1). He

then argues Defendant Winford arrested him on May 20, 2021, without any investigation, causing

him to be wrongfully imprisoned. (Id. at 2-3). Plaintiff provides no further detail as to his

3 The Court notes that Plaintiff was incarcerated at the time he filed his Complaint, and his address

has remained the Crawford County Detention Center for the duration of this case.

wrongful imprisonment, instead focusing on the arrest alone. As noted in the Report and

Recommendation, the Order dismissing Claim One, and Defendant Winford’s Memorandum,

Plaintiff’s Complaint is time-barred.

On January 28, 2025, Defendant Perry submitted a Motion to Dismiss Case. (ECF No.

35). On February 13, 2025, Defendants Chancey and King submitted a Motion to Dismiss. (ECF

No. 40). All three Defendants argue that Plaintiff’s case should be dismissed because his claims

are time-barred. (ECF Nos. 35, 40). They all further argue that Plaintiff’s false imprisonment

claim is barred by the Heck doctrine because “Plaintiff’s 2021 convictions connected to his May

20, 2021 – September 8, 2021 incarceration have not been overturned or otherwise invalidated.”

(Id.).

On April 11, 2025, the undersigned entered two Orders directing Plaintiff to submit his

Responses to the two Motions to Dismiss. (ECF Nos. 44, 45). The deadline for Plaintiff to submit

his Responses was set for May 2, 2025. (Id.). Plaintiff was advised in both Orders that “failure to

timely and properly comply with this Order shall result in the dismissal of this action, without

prejudice, pursuant to Local Rule 5.5(c)(2).” Neither Order was returned as undeliverable.

When Plaintiff failed to submit his Responses, the undersigned entered a Show Cause

Order on May 23, 2025. (ECF No. 46). The deadline for Plaintiff to Respond was set for June 13,

2025. (Id.). Plaintiff was again advised that failure to respond by the deadline would result in the

dismissal of his case. (Id.). The Order was not returned as undeliverable. To date, Plaintiff has

failed to respond to any of the three Orders, and he has not otherwise communicated with the

Court.

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 three 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’s Complaint (ECF No. 1) be

DISMISSED WITHOUT PREJUDICE.

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

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 June 2025.

/s/

HON. MARK E. FORD

UNITED STATES MAGISTRATE JUDGE