Waller v. Owens et al

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
ANTONIO JEROME WALLER, 	PLAINTIFF
v. 	Civil No. 1:24-CV-01085-SOH-BAB
SERGEANT DYLAN OWENS, Union
County Detention Center (UCDC); and
NURSE KASI SANFORD, Turn Key Health
Clinics, LLC, 	DEFENDANTS
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff Antonio Jerome Waller initiated the above-captioned civil rights action pursuant
to 42 U.S.C. § 1983 when he was incarcerated at the Union County Detention Center (“UCDC”).
See (ECF No. 1). He proceeds pro se and in forma pauperis (“IFP”). (ECF No. 3). Pursuant to
the provisions of 28 U.S.C. § 636(b)(1) and (3), the Honorable Susan O. Hickey, Chief Judge,
United States District Court, referred this case to the undersigned for the purpose of making a
Report and Recommendation. This matter is currently before the Court on Plaintiff’s failure to
comply with multiple court orders and failure to prosecute this case.
I. 	BACKGROUND
On November 20, 2024, Plaintiff filed this action and requested to proceed IFP. (ECF Nos.
1-2). 	That same day, this Court granted Plaintiff’s motion. 	(ECF No. 3). 	The IFP Order also
directed Plaintiff to file a notice of change of address within thirty days of any such change, failing
which this matter would be subject to dismissal for failure to comply with court orders. Id. This
Order was not returned as undeliverable. Upon preservice review of Plaintiff’s complaint pursuant
to 28 U.S.C. § 1915A(a), this Court recommended that Plaintiff’s individual capacity claims
against Defendants Dylan Owens and Kasi Sanford for failure to provide constitutionally adequate
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medical care proceed and that all other claims be dismissed without prejudice for failure to state a
plausible claim for relief. 	(ECF No. 6). 	Consistent with these recommendations, this Court
ordered that the complaint be served on Dylan Owens and Kasi Sanford. 	(ECF No. 7). 	Later,
Chief Judge Susan O. Hickey adopted those recommendations over Plaintiff’s objection. 	(ECF
No. 20).
On February 27, 2025, Plaintiff filed a notice of change of address indicating that he had
been released from custody. (ECF No. 12). In accordance with the policies of the District, this
Court then ordered Plaintiff to submit an updated IFP application reflecting his “free world”
financial status or pay the remaining balance of the $350 filing fee by March 21, 2025, failing
which this matter would be subject to dismissal. (ECF No. 13). This Order was not returned as
undeliverable.
On February 28, 2025, Defendant Sanford submitted her Answer. 	(ECF No. 16). 	That
same day, the mail that this Court had sent to the Union County Detention Center was returned as
undeliverable. (ECF No. 17). It was resent to Plaintiff’s updated address. (ECF No. 17). It has
not been returned as undeliverable from this address. Later, this Court ordered Defendant Sanford
to either submit a motion for summary judgment on the issue of whether Plaintiff properly
exhausted his administrative remedies prior to initiating this action by May 16, 2025, or promptly
file a notice informing the Court and parties that she did not intend to pursue such a defense at
trial. (ECF No. 18).
When Plaintiff did not submit an updated IFP application or pay the full statutory filing fee
by March 21, 2025, as ordered, this Court ordered Plaintiff to show cause why this case should not
be dismissed for failure to comply with court orders. (ECF No. 21). The Court entered the show
cause order on April 1, 2025, and Plaintiff’s response was due by April 22, 2025. (ECF No. 21).
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This order was not returned as undeliverable. On April 14, 2025, Defendant Owens entered his
Answer. (ECF No. 23). Plaintiff’s deadline for either submitting an updated IFP application or
paying the unpaid balance of the statutory filing fee has now passed, and Plaintiff has failed to
respond.
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: the Court’s order directing him to
either submit an updated IFP application or pay the unpaid balance of the statutory filing fee, (ECF
No. 13), and the Court’s order to show cause, (ECF No. 21). 	These orders were mailed to his
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updated address and not returned as undeliverable. 	Plaintiff has failed to prosecute this case.
Accordingly, pursuant to Federal Rule of Civil Procedure 41(b) and Local Rule 5.5(c)(2), it is
recommended that Plaintiff’s complaint be dismissed for failure to comply with the Court’s Local
Rules and Orders and for failure to prosecute this case.
IV. 	CONCLUSION
For the reasons discussed above, it is recommended that Plaintiff’s complaint (ECF No. 1)
be DISMISSED WITHOUT PREJUDICE.
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.
STATUS OF REFERRAL: NO LONGER REFERRED
DATED this 1st day of May 2025.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE
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