Johnson v. Hausen et al

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
CHARLES WESLEY JOHNSON 	PLAINTIFF
v. 	Civil No. 6:23-cv-06141-SOH-CDC
KITCHEN MANAGER JESSEE HUND
HAUSEN; CAPTAIN BELINDA CROSGROVE;
SERGEANT R. HADLEY; and LIEUTENANT
CHRIS MCFEE 	DEFENDANTS
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
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. 	Pursuant to the provisions of 28 U.S.C. §§ 636(b)(1) and
(3), the Honorable Susan O. Hickey, Chief 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 December 18, 2023. 	(ECF No. 1).
An initial scheduling order was issued on June 4, 2024. 	(ECF No. 21). 	On October 15, 2024, an
Order was entered extending the summary judgment filing deadline to November 29, 2024. 	(ECF
No. 30).
On November 27, 2024, Separate Defendants Crosgrove, Hadley, and Mcfee filed a Motion
for Summary Judgment. 	(ECF Nos. 31-33). 	On November 29, 2024, Separate Defendant
Hausen filed his Motion for Summary Judgment. 	(ECF Nos. 34-36). 	On December 2, 2024,
Orders were entered directing Plaintiff to respond to the summary judgment motions by December
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23, 2024. 	(ECF Nos. 37 & 38). 	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 Orders, Plaintiff was advised that failure to respond to the Orders would
result in the case being dismissed and judgment entered in favor of the Defendants.
Plaintiff did not file a response to either summary judgment motion. 	As a matter of
procedural fairness and to give Plaintiff yet another opportunity to comply with the Court’s Orders,
on December 30, 2024, a Show Cause Order was entered. 	(ECF No. 43). 	Plaintiff was given
until January 21, 2025, to show cause why he failed to obey the Orders of the Court. 	Plaintiff
was advised that if he failed to respond to the Show Cause Order, the case shall be subject to
dismissal.
To date, Plaintiff has not filed responses to the Defendants’ pending Motions 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. 37, 38, & 43). 	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 respective
Motions for Summary Judgment. 	Plaintiff then chose not to respond to these Motions even after
being directed to do so by the Court in two separate instances. 	Plaintiff was advised in three
separate Court Orders that failure to respond would result in dismissal of his case. 	Plaintiff has
not communicated with the Court in any way since he filed a Motion for Appointment of Counsel
on March 6, 2024.
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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 to comply
with Local Rule 5.5(c)(2).
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: 	The referral terminates upon the filing of this Report and
Recommendation.
RECOMMENDED this 31st day of January 2025.
s/ Christy Comstock
CHRISTY COMSTOCK
UNITED STATES MAGISTRATE JUDGE
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