Balentine v. Marshall et al

1
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
MARK LEE BALENTINE 	PLAINTIFF
v. 	Civil No. 6:23-cv-06136-SOH-CDC
JAILER ZACH MARSHALL and
SHERIFF JASON WATSON 	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 three Court Orders and
failure to prosecute this case.
I. BACKGROUND
Plaintiff filed his Complaint on December 13, 2023. 	(ECF No. 1). 	On July 19, 2024,
Defendants filed their Motion for Summary Judgment for Failure to Exhaust Administrative
Remedies. 	(ECF No. 18). 	On July 22, 2024, the Court entered an Order directing Plaintiff to
submit his Summary Judgment Response by August 12, 2024. 	(ECF No. 21). 	When Plaintiff
failed to do so, the Court entered a Show Cause Order on August 26, 2024, directing Plaintiff to
show cause for his failure to obey the Court’s Order by September 16, 2024. (ECF No. 22). Both
Orders advised Plaintiff that failure to submit the required response by the deadline would result
in the dismissal of his case. (ECF Nos. 21, 22). Plaintiff did not respond to either Order.
On October 1, 2024, the undersigned entered a Report and Recommendation. (ECF No.
23). It was recommended that Plaintiff’s case be dismissed for failure to obey two Court Orders
Case 6:23-cv-06136-SOH Document 28 Filed 12/16/24 Page 1 of 3 PageID #:
<pageID>

2
and failure to prosecute this case. (Id.). On October 15, 2024, Plaintiff submitted an Objection to
the Report and Recommendation. 	(ECF No. 24). 	Based on this Objection, the Hon. Susan O.
Hickey declined to adopt the Report and Recommendation on November 20, 2024. (ECF No. 25).
That same day, the undersigned entered an Order directing Plaintiff to file his Response to the
Summary Judgment Motion by December 11, 2024. (ECF No. 26). In the Order, Plaintiff was
cautioned that no further extensions of time to file would be granted because the Summary
Judgment Motion had been in his possession for nearly 4 months. (Id.).
This Order was not returned as undeliverable. To date, Plaintiff has failed to submit his
Response to any Order.
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
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).
Case 6:23-cv-06136-SOH Document 28 Filed 12/16/24 Page 2 of 3 PageID #:
<pageID>

3
III. ANALYSIS
Plaintiff has failed to comply with three 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 Complaint (ECF No. 1) 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.
DATED this 16th day of December 2024.
/s/ Christy Comstock
HON. CHRISTY COMSTOCK
UNITED STATES MAGISTRATE JUDGE
Case 6:23-cv-06136-SOH Document 28 Filed 12/16/24 Page 3 of 3 PageID #:
<pageID>