Lofton v. Ware et al

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
LEE NICHOLAS LOFTON, SR. 	PLAINTIFF
v. 	Civil No. 6:24-cv-06009-SOH-CDC
JAIL ADMINISTRATOR JOEL. R. WARE;
FOOD ADMINISTRATOR JESSIE
HUNDHAUSEN;
SHERIFF MIKE McCORMICK;
DEPUTY KING (All of Garland County
Detention Center) 	DEFENDANTS
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This is a civil rights action filed pursuant to 42 U.S.C. § 1983. 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. Currently before the Court is Plaintiff’s failure to obey Court Orders and failure
to prosecute this case.
I. BACKGROUND
Plaintiff filed his Complaint on February 5, 2024. (ECF No. 1). That same day, the Court
entered an Order directing him to submit a completed in forma pauperis (“IFP”) application. (ECF
No. 2). 	He was also ordered to submit an Amended Complaint to address deficiencies in his
original Complaint. 	(Id.). 	When Plaintiff submitted only an untimely and incomplete IFP
application by the deadline, the Court entered a Show Cause Order. 	(ECF No. 6). 	Plaintiff
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submitted an Amended Complaint on March 25, 2024. (ECF No. 7). He subsequently submitted
a completed IFP application and was granted IFP status on April 22, 2024. (ECF Nos. 9, 10).
Defendants filed their Joint Motion for Summary Judgment for Failure to Exhaust
Administrative Remedies on August 26, 2024. 	(ECF No. 30). 	On August 28, 2024, the Court
entered an Order directing Plaintiff to submit his Summary Judgment Response by September 18,
2024. 	(ECF No. 33). 	Plaintiff was advised that failure to submit his Response by the deadline
would result in the dismissal of his case. (Id.).
On September 18, 2024, Plaintiff submitted a Motion for Extension of Time to Submit his
Summary Judgment Response and his second Motion for Counsel in this case. (ECF Nos. 34, 35).
The Motion for Counsel was denied. (ECF No. 36). The Motion for Extension was granted, and
Plaintiff was given until October 2, 2024, to submit his Summary Judgment Response. (ECF No.
37). On October 3, 2024, one day after the extended deadline, Plaintiff submitted a second Motion
for Extension of Time and a third Motion for Counsel. (ECF Nos. 39, 40). Both motions were
denied. (ECF No. 41, 42). On October 7, 2024, the Court entered a Show Cause Order, directing
Plaintiff to Show Cause for his failure to submit his Summary Judgment Response by October 28,
2024. (ECF No. 43). Plaintiff was advised that failure to submit his Show Cause Response would
result in the dismissal of his case. 	(Id.). 	This Order was not returned undeliverable. 	To date,
Plaintiff has failed to submit both his Show Cause Response and his Summary Judgment Response.
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
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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 multiple 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 Amended Complaint (ECF No. 7) 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 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
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reminded that objections must be both timely and specific to trigger de novo review by the
district court.
DATED this 30th day of October 2024.
/s/ Christy Comstock
HON. CHRISTY COMSTOCK
UNITED STATES MAGISTRATE JUDGE
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