Clemons v. McSlone (#118) et al

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
OVELL DANIEL CLEMONS, JR. 	PLAINTIFF
v. 	Civil No. 6:24-cv-06061-SOH-CDC
OFFICER McSLONE (#118), et. al. 	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 a Court Order and
failure to prosecute this case.
I. BACKGROUND
Plaintiff filed his Complaint on April 26, 2024. (ECF No. 1). Because Plaintiff had made
allegations of two separate incidents which occurred several months apart and involved different
officers for each incident, the Court entered an Order to sever the claims and open a new case.
(ECF No. 2). 	On May 6, 2024, the Court entered an Order directing that an in forma pauperis
(“IFP”) application and an Amended Complaint be filed by May 28, 2024. (ECF No. 4). Plaintiff
subsequently filed his IFP application and his Amended Complaint. (ECF Nos. 5, 8).
On July 22, 2024, Defendant Turnkey Health filed a Motion to Dismiss for Failure to State
a Claim. 	(ECF No. 20). 	The next day the Court entered an Order directing Plaintiff to submit
either a Response to the Motion or an Amended Complaint. (ECF No. 22). Plaintiff timely filed
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an Amended Complaint on August 12, 2024. (ECF No. 24). The Motion to Dismiss was denied
as moot without prejudice as to refiling on August 13, 2024. (ECF No. 25).
Defendant Turnkey Health filed a second Motion to Dismiss on August 26, 2024. (ECF
No. 33). 	Review of the second Motion to Dismiss along with Plaintiff’s Amended Complaint
revealed that only the odd numbered pages of the Amended Complaint were included on the
docket. 	Understanding that the Clerk returned the Amended Complaint to Plaintiff after it was
filed, Plaintiff was directed to return his Amended Complaint once again to the Court so that all
its pages could be filed on the docket. (ECF No. 35). In the alternative, Plaintiff was directed to
file another Amended Complaint. (Id.). Plaintiff filed an Amended Complaint on September 23,
2024. (ECF No. 36).
Defendant Turnkey Health then filed a third Motion to Dismiss on October 7, 2024. (ECF
No. 40). 	Plaintiff was directed to file his Response by October 29, 2024. 	(ECF No. 43). 	On
October 11, 2024, Plaintiff filed a Notice of Address Change indicating that he had been
transferred to the Arkansas Division of Correction (“ADC”) Ouachita River Unit. (ECF No. 44).
Mail which had been previously sent to his prior address at the Garland County Detention Center
was returned as undeliverable and resent to Plaintiff at his new address on October 25, 2024, and
November 11, 2024. (ECF Nos. 45, 46). The resent mail was not returned as undeliverable.
To date, Plaintiff has failed to submit his Response to the Motion to Dismiss. He has not
communicated with the Court since filing his Notice of Address Change on October 11, 2024.
(ECF No. 44).
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:
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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 a Court Order. 	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. 36) be
DISMISSED WITHOUT PREJUDICE.
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
reminded that objections must be both timely and specific to trigger de novo review by the
district court.
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DATED this 6th day of January 2025.
/s/ Christy Comstock
HON. CHRISTY COMSTOCK
UNITED STATES MAGISTRATE JUDGE
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