Wyner v. Dockery et al

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
PHILLIP JAMES WYNER 	PLAINTIFF
v. 	Civil No. 4:24-cv-04037-SOH-MEF
SERGEANT DOCKERY,
Miller County Detention Center (MCDC);
SERGEANT FRAZIER, MCDC;
LIEUTENANT GUTHRIE, MCDC;
LIEUTENANT ALICE MILLER, MCDC;
And CAPTAIN ADAMS, MCDC 	DEFENDANTS
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
This is a civil rights action filed by the Plaintiff under 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 May 9, 2024. 	(ECF No. 1). 	A
Bench Order was entered on July 16, 2024. 	(ECF No. 12). 	The Bench Order advised Defendants
that if they wished to raise the defense of failure to exhaust administrative remedies, they must do
so by September 16, 2024. 	(ECF No. 12).
On September 16, 2024, Defendants timely filed a Motion for Summary Judgment on the
issue of exhaustion. 	(ECF Nos. 14-16). 	The same day, an Order was entered directing Plaintiff
to respond to the summary judgment motion by October 7, 2024. 	(ECF No. 17). 	Plaintiff was
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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 Order, Plaintiff was advised
that failure to respond to the Order would result in: (a) all the facts set forth by the Defendants in
the summary judgment papers being deemed admitted and/or (b) the case would be subject to
dismissal.
Plaintiff did not file a response to the Motion for Summary Judgment. 	As a matter of
procedural fairness and to give Plaintiff yet another opportunity to comply with the Court’s Order,
on October 29, 2024, a Show Cause Order was entered. 	(ECF No. 18). 	Plaintiff was given until
November 19, 2024, 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.
Plaintiff failed to respond to the Show Cause Order. 	To date, Plaintiff has not responded
to the Summary Judgment Motion or the Show Cause Order. 	Plaintiff has not otherwise
communicated with the Court.
On April 4, 2025, Defendants filed a Motion to Dismiss the case with prejudice based on
Plaintiff’s failure to comply with the Court’s Orders. 	(ECF No. 19).
No mail has been returned as undeliverable. 	Plaintiff has failed to comply with the Court’s
Orders (ECF Nos. 17, 18). 	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.
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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). 	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 in responding to the Complaint and preparing the
Motion for Summary Judgment on exhaustion. 	Plaintiff then chose not to respond to the
Summary Judgment Order or the Show Cause Order. 	In both Orders, Plaintiff was advised that
failure to comply would result in the dismissal of the case. 	In fact, the Show Cause Order says
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that failure to respond “shall” subject the case to dismissal. 	The last document filed by the
Plaintiff was his change of address filed on August 23, 2024. 	(ECF No. 13).
II. 	CONCLUSION
For these reasons, it is RECOMMENDED that Defendants’ Motion to Dismiss (ECF No.
19) be GRANTED and this case be DISMISSED WITH PREJUDICE, pursuant to Rule 41(b)
of the Federal Rules of Civil Procedure 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).
Status of Referral: The referral terminates upon the filing of this Report and
Recommendation.
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 15th day of April 2025.
/s/	
Mark E. Ford
HON. MARK E. FORD
UNITED STATES MAGISTRATE JUDGE
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