Buckner v. Washington County Detention Center

Opinion

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS FAYETTEVILLE DIVISION

ZACHARY RYAN BUCKNER PLAINTIFF

v. Civil No. 5:21-cv-05144

OFFICER PHIPPS DEFENDANT

REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE This is a civil rights action filed by the Plaintiff, Zachary R. Buckner (“Buckner”), pursuant to 42 U.S.C. § 1983. Buckner proceeds pro se and in forma pauperis. When he filed this case, Buckner was incarcerated in the Washington County Detention Center (“WCDC”). Pursuant to the provisions of 28 U.S.C. §§ 636(b)(1) and (3), the Honorable Timothy L. Brooks, 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 Orders of the Court. I. DISCUSSION When he filed this case, Buckner was specifically advised (ECF No. 3) that he was required to immediately inform the Court of any change of address. Additionally, Rule 5.5(c)(2) of the Local Rules for the Eastern and Western Districts of Arkansas requires pro se parties to “promptly notify the Clerk and 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.” On May 2, 2022, the Defendant filed a Motion for Summary Judgment (ECF No. 21). That same day, an Order (ECF No. 24) was entered directing Plaintiff to file a response to the Motion for Summary Judgment by May 23, 2022. Plaintiff was advised that failure to respond to the Order would result in (a) all facts set forth in Defendant’s statement of facts being admitted 1 and/or (b) the dismissal of the case, without prejudice. To date, Plaintiff has not filed a response to the Motion for Summary Judgment. He has not requested an extension of time to file his response. The Court’s Order was not returned as undeliverable. Plaintiff has failed to comply with the Court’s Order (ECF No. 24) requiring him to file his summary judgment response by May 23, 2022. On July 1, 2022, a Show Cause Order (ECF No. 25) was entered. Buckner was given until July 22, 2022, to show cause why the case should not be dismissed based on his failure to file a summary judgment response by May 23, 2022. On July 14, 2022, the Show Cause Order was returned as undeliverable with a note that Buckner was not at the WCDC. The Federal Rules of Civil Procedure specifically contemplate dismissal of a case on the ground that the plaintiff failed to prosecute or failed to comply with an order of the court. Fed. R. Civ. P. 41(b); Line 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). 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. II. CONCLUSION For these reasons, it is recommended that this case be DISMISSED WITHOUT

PREJUDICE pursuant to Rule 41(b), based on Plaintiff’s failure to prosecute this case, his failure to obey the order of the Court, and his failure to comply with Local Rule 5.5(c)(2). Fed. R. Civ. P. 41(b). The parties have fourteen days from receipt of the Report and Recommendation in 2 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 14th day of July 2022.

/s/ Christy Comstock CHRISTY COMSTOCK UNITED STATES MAGISTRATE JUDGE