Bothwell v. Black et al

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
ANTHONY SANTE BOTHWELL, JR. 	PLAINTIFF
v. 	Civil No. 4:24-cv-04132-CDC
SHERIFF JEFF BLACK;
JAIL ADMINISTRATOR RAMI COX;
JESSICA WISE; and JENNA A. 	DEFENDANTS
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Before the Court is Plaintiff’s failure to prosecute. The case was directly assigned to the
undersigned Magistrate Judge. However, because not all parties to the action have consented to
the jurisdiction of the undersigned, and this document will be dispositive of Plaintiff’s claims, this
document will be filed as a Report and Recommendation and the case will automatically be
reassigned to Chief United States District Judge Susan O. Hickey. 28 U.S.C. § 636(c); Rule 73 of
the Federal Rules of Civil Procedure, and General Order 2024-02.
I. 	BACKGROUND
Plaintiff, Anthony Sante Bothwell, Jr. originally submitted this 42 U.S.C. 1983 action pro
se on November 6, 2024 at Civil Number 4:24-cv-04116-CDC. The Court entered a Severance
Order severing Plaintiff’s Complaint and opening this separate case for Plaintiff’s conditions-of-
confinement claims asserted against Defendants. The Severance Order was filed in this case as
well. 	(ECF No. 1). 	In the Severance Order, the Court also directed Plaintiff to file a Second
Amended Complaint in this case along with a new application to proceed in forma pauperis (“IFP
Application”). Id. Plaintiff failed to do so.
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On January 13, 2025, the Court entered an Order to Show Cause directing Plaintiff to show
cause why he failed to submit a Second Amended Complaint and IFP Application. (ECF No. 4).
Plaintiff submitted his IFP Application on the same day the Court issued the Show Cause Order,
but he failed to submit a Second Amended Complaint. (ECF No. 5).
On February 25, 2025, the Clerk of the Court entered a Staff Note onto the docket stating
Plaintiff filed a Notice of Change of Address in his original case at Civil Number 4:24-cv-04116-
CDC. Accordingly, at the direction of the undersigned, the Clerk changed Plaintiff’s address of
record in this case pursuant to Plaintiff’s Notice of Change of Address filed in Civil Number 4:24-
cv-04116-CDC. On February 25, 2025, the Clerk also resent the following mailings to Plaintiff at
his new address of record: (1) the Court’s Severance Order, (ECF No. 1); (2) the January 13, 2025
Show Cause Order, (ECF No. 4); and (3) a blank Section 1983 Amended Complaint Form. The
Court did not receive any of these mailing returned as undeliverable mail, however, Plaintiff never
responded.
On March 11, 2025, in an effort to ensure the Plaintiff was receiving the Clerk’s mailings,
the Court issued an Order to Communicate. 	(ECF No. 8). 	This Order directed Plaintiff to
communicate with the Court by April 1, 2025 if he wished for this case to continue. Id. The Order
also cautioned Plaintiff that his failure to respond would result in the dismissal of this case. Id.
The Order was sent to Plaintiff’s address of record and not returned as undeliverable mail. Plaintiff
failed to respond.
II. 	DISCUSSION
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 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).
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. 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 involuntarily.
Id.
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As evidenced by the docket, Plaintiff has failed to prosecute this case and comply with the
Court’s Orders. 	Plaintiff failed to keep the Court informed of his current address and has
continuously failed to respond to the Court’s orders. While the Court finds Plaintiff’s failure to
respond willful, it does not find dismissal with prejudice justified under these circumstances.
Plaintiff is responding to mail sent to the same address of record in his original case at Civil No.
4:24-cv-04116-CDC and in an unrelated case Plaintiff also has pending before the Court at Civil
No. 1:24-cv-01079-SOH-CDC. 	Therefore, the Court presumes Plaintiff is receiving the instant
Orders and choosing not to prosecute this particular case. However, the Court is mindful this case
was opened on the Court’s Severance Order and not at Plaintiff’s request. Additionally, service
has not yet been issued in this case. Accordingly, the Court finds dismissal without prejudice is
warranted here despite Plaintiff’s willful disobedience of the Court’s Orders.
III. 	CONCLUSION
Therefore, pursuant to Federal Rule of Civil Procedure 41(b) and Local Rule 5.5(c)(2), the
Court hereby recommends Plaintiff’s Amended Complaint (ECF No. 2) be DISMISSED
WITHOUT PREJUDICE.
REFERRAL STATUS: The referral in this case shall be terminated.
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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/ Christy Comstock
HON. CHRISTY COMSTOCK
UNITED STATES MAGISTRATE JUDGE
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