Ketcher v. White et al

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
JARROD KETCHER 	PLAINTIFF
v. 	Civil No. 5:24-cv-05090-TLB-MEF
DEPUTY WHITE and
DEPUTY VENASULA 	DEFENDANTS
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, Jarrod Ketcher, filed this action pro se and in forma pauperis pursuant to 42
U.S.C. § 1983. Currently before the Court is Plaintiff’s failure to prosecute this case. 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.
I. 	BACKGROUND
Plaintiff filed this 42 U.S.C. § 1983 action pro se on April 17, 2024, along with an
application to proceed in forma pauperis (“IFP Application”). (ECF Nos. 1-2). The Court granted
Plaintiff in forma pauperis status the same day. 	(ECF No. 3). 	Plaintiff filed an Amended
Complaint on April 29, 2024. (ECF No. 6).
In his Amended Complaint, Plaintiff alleged:
On or about March 11, 2024 [at] 5:30 pm the officers named in claim
were escorting Ketcher to E-Pod from D-Pod. 	In Pod Control,
Officer White stated ‘your gonna taste the concrete for your
birthday!’ and proceeded to slam Ketcher up against the wall to
restrain him. After restraining him, he was carried to E-Pod cell E-
237 where he was [then] excessively forced to the concrete on his
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face for no reason. Nose was busted and bleeding and was forced
to lay in his own blood for at least ten minutes. Officer White took
a photo of his face on his [BCDC] phone. Deputy Venezuela had
one arm when I was slammed on my face, White had the other.
(ECF No. 6, pp. 4-5) (cleaned up).
On December 19, 2024, Defendants filed a Partial Motion for Summary Judgment, a Brief
in Support, and a Statement of Indisputable Material Facts. (ECF Nos. 21-23). In this Motion,
Defendants move for summary judgment only on the excessive force claims regarding the force
used in the hallway of the Benton County Detention Center (“BCDC”)—slamming Plaintiff into
the wall and carrying him down the hallway. 	(Id.). 	Defendants specifically state: “Genuine
disputes as to material facts remain concerning the parties’ actions inside the E-pod cell as no
video captured that part of the interaction. Defendants do not seek summary judgment with regard
to that portion of the interaction.” (ECF No. 21, p. 2).
On December 20, 2024, the Court entered an Order directing Plaintiff to respond to
Defendants’ Partial Motion for Summary Judgment. (ECF No. 24). Plaintiff’s response was due
on January 10, 2025. Id. This Order was mailed to Plaintiff at his address of record. It was not
returned as undeliverable mail, and the Plaintiff has failed to respond.
On January 13, 2025, the Court entered an Order to Show Cause directing Plaintiff to
respond showing cause why he failed to follow the Court’s Order entered on December 20, 2024.
(ECF No. 26).
Plaintiff responded to the Order to Show Cause on January 24, 2025. (ECF No. 27). In
this Response, Plaintiff states: he sent his response to Defendants’ Partial Motion for Summary
Judgment to the Clerk’s Office in Fayetteville, Arkansas. Plaintiff requests instructions on how to
proceed. Id. In response to Plaintiff’s request, the Court issued a second Order directing Plaintiff
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to respond to Defendants’ Partial Motion for Summary Judgment. 	(ECF No. 29). 	Plaintiff’s
deadline to file his response was set at February 24, 2025. Id.
Plaintiff filed his Response on February 10, 2025. (ECF No. 31). His Response included
one page listing exhibits and exhibits attached. 	The exhibits listed include: (1) Exhibit A.1
“PHOTOS OF MY FACE AFTER BEING PUT IN CUFFS”; (2) Exhibit A.2 “PHOTOS OF MY
FACE AFTER BEING PUT IN CUFFS”; and (3) Exhibit B “WILL BE [VIDEO] OF THE TIME
THEY BEAT ME IN CUFFS. IN A THUMB DRIVE FILE.” Id. Attached as Exhibits are two
pictures of Plaintiff’s bloody face. There is no video attached and no thumb drive video was sent
for conventional filing with the Clerk’s Office.0F
1 Plaintiff did not sign or execute his Response in
anyway. Id.
On February 24, 2025, the Court received notice that mail addressed to Plaintiff at his
address of record was returned as deliverable. (ECF No. 32). Pursuant to the Court’s initial filing
Order, the Court waited 30 days for Plaintiff to provide his new address.1F
2 (ECF No. 3). Plaintiff
has failed to do so.
The Court has not received any communications from Plaintiff since he filed his Response
on February 10, 2025.
II. 	APPLICABLE LAW
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.
1 Defendants submitted a video thumb drive as Exhibit 8 to their Partial Motion for Summary
Judgment. (ECF Nos. 21-23). This video is footage from the BCDC, but there is no footage inside
the cell where Plaintiff’s nose and face were injured. Id.
2 The Court’s initial filing Order specifically advised Plaintiff: “If Plaintiff is transferred to
another jail or prison or released, he shall have 30 days from the date of transfer or release
in which to notify the Court of his new address. . . . Failure to inform the Court of an address
change shall result in the dismissal of this case.” (ECF No. 3) (emphasis in original).
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1984). Local Rule 5.5(c)(2) states 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.
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. C IV. 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).
A dismissal pursuant to Rule 41(b) operates as an adjudication on the merits unless it is
otherwise specified. FED . R. C IV. P. 41(b); Brown, 806 F.2d at 803. In considering a 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
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involuntarily.
Id.
IV. 	DISCUSSION
Here, Plaintiff has clearly failed to comply with the Court’s Order and keep the Court
informed of his current address. 	Furthermore, Plaintiff failed to comply with the Court’s two
Orders instructing him how to respond to Defendants’ Partial Motion for Summary Judgment.
(ECF Nos. 24, 29). Specifically, Plaintiff was instructed of the requirements of Federal Rule of
Civil Procedure 56 in the Court’s Orders:
Defendants have filed a Motion pursuant to Rule 56 of the Federal
Rules of Civil Procedure asking the Court to decide part or all of this
case without a trial. The Motion is based on the written evidence,
including affidavits, submitted in support of the Motion or is based
on the argument that you are unable to offer admissible evidence in
support of your claims.
You must respond to this Motion. If you do not, the claims in your
case may be dismissed without a trial. If the claims are dismissed,
you may never again assert the same claims set forth in your
Complaint against the same Defendants.
To oppose a Motion for Summary Judgment you may not simply
rely on the allegations in your Complaint. You must submit
evidence, such as records, affidavits, discovery responses, or other
documents, opposing the facts asserted by the defendants and setting
out specific facts to support your claims. If you have any evidence
to support your claims, now is the time to submit it by attaching it
to your response as exhibits.
Any written statements must be in the form of affidavits. An
affidavit is a sworn statement based on personal knowledge setting
forth facts relevant to your claims. An affidavit must be either: (a)
sworn and subscribed to by a notary public or (b) signed under
penalty of perjury. You may submit your own affidavit and the
affidavit of others.
You must also file a separate Statement of Facts in Dispute which
lists: (a) any disagreement you have with the numbered factual
statements contained in the Statement of Undisputed Facts filed by
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the Defendants; and (b) any other disputed facts that must be
resolved at a hearing or trial. If you dispute any facts contained in
the 	Defendants 	numbered 	Statement 	of 	Undisputed 	Facts,
you must identify the number of the paragraph you dispute and you
must explain why you dispute the statement.
Your Statement of Disputed Facts is not the same as an affidavit
unless your Statement of Facts is signed before a notary public or
signed under penalty of perjury.
If you intend to rely on any documents that were previously filed
with the Court, you must specifically refer to the documents by the
ECF No. and page number, for example ECF No. 8 at p. 2. The Court
will not look through the entire case file to locate a document
supporting your factual statements.
You may also make any legal arguments in support of your claims.
You are not required to, but may, refer the Court to case law.
If you do not respond, this is the same as failing to present any
evidence in your favor at trial. Your case may be dismissed and
judgment may be entered in favor of the Defendants without a trial.
If you need more time to respond, you must file a motion requesting
an extension of time before the due date set by the Court.
(ECF Nos. 24, 29).
Plaintiff failed to submit a separate statement of disputed facts, or an affidavit in support
of his response and exhibits. (ECF No. 31). Summary judgment evidence “must be authenticated
by and attached to an affidavit made on personal knowledge setting forth such facts as would be
admissible in evidence or a deposition that meets the requirements of Federal Rule of Civil
Procedure 56(e). 	Otherwise, the Court may not consider it. 	Edwards v. Hiland Roberts Dairy,
Co., 860 F.3d 1121, 1127 (8th Cir. 2017) (internal quotations omitted). Accordingly, the Court
will not consider Plaintiff’s response.
Moreover, Plaintiff’s Response is deficient as the exhibits are irrelevant to the claim
addressed in Defendants’ Partial Motion for Summary Judgment. As explained above, Defendants
move for summary judgment only on the use of force that occurred in the hallway of the BCDC
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as those events were captured on video. Defendants specifically note in their Motion that they are
not moving for summary judgment on the force alleged inside Plaintiff’s cell. 	(ECF No. 21).
Plaintiff specifically claims in his Amended Complaint that his nose was busted and bloodied
inside his cell. (ECF No. 6 at 5). Accordingly, even if Plaintiff’s Response complied with Rule
56 and the Court’s Orders, the evidence Plaintiff submitted is irrelevant to Defendants’ pending
Partial Motion for Summary Judgment.
Lastly, the Court cannot provide Plaintiff a third attempt to respond to Defendants’ Partial
Motion for Summary Judgment as he has failed to comply with the Court’s Orders and keep his
address of record updated.
Accordingly, the Court finds Plaintiff’s claims should be dismissed for failure to prosecute
this action and for failure to comply with the Court’s Orders. Specifically, Plaintiff’s claims of
excessive force which allegedly occurred in the hallway of the BCDC and are the subject of
Defendants’ Partial Motion for Summary Judgment should be dismissed with prejudice due to: (1)
the Defendants’ expenditure of resources in discovery and filing of the Partial Motion for
Summary Judgment, and (2) Plaintiff’s repeated failure to comply with the Court’s Orders. See
Rodgers, 135 F.3d at 1219. On the other hand, Plaintiff’s claims of excessive force which occurred
inside his cell and are not addressed in Defendants’ Partial Motion for Summary Judgment should
be dismissed without prejudice as the Court cannot determine Plaintiff willfully failed to prosecute
this claim. Id.
V. 	CONCLUSION
For the reasons discussed above, and pursuant to Federal Rule of Civil Procedure 41(b)
and Local Rule 5.5(c)(2), the undersigned RECOMMENDS that Plaintiff’s Amended Complaint
(ECF No. 6) be DISMISSED as follows: Plaintiff’s claims of excessive force against Defendants
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which allegedly occurred in the hallway of the BCDC on March 11, 2023, should be DISMISSED
WITH PREJUDICE, and Plaintiff’s claims of excessive force which allegedly occurred inside
his cell on March 11, 2023, should be DISMISSED WITHOUT PREJUDICE.
STATUS REFERRAL: Referral should be terminated.
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 4th day of April 2025.
/s/
Mark E. Ford
HON. MARK E. FORD
UNITED STATES MAGISTRATE JUDGE
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