Luna v. Gentry

• Court: District Court, W.D. Arkansas
• Decided: February 21, 2023
• Docket: 4:22-cv-04083
• Status: Unknown

Opinion

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

ANTONIO LUNA PLAINTIFF

v. Civil No. 4:22-CV-04083-SOH-BAB

ROBERT GENTRY, 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 two Court Orders and failure to prosecute this case. I. BACKGROUND Ronnie Luna, an inmate of the Sevier County Sheriff’s Office (“SCSO”), attempted to file a Complaint on behalf of himself and 20 other SCSO inmates on September 13, 2022. (Luna v. Gentry, Case No. 4:22-cv-04098). That same day, the Court entered an Order provisionally filing the Complaint, and directing the Clerk to open separate actions on behalf of the 20 other inmates. (Luna v. Gentry, Case No. 4:22-cv-04098, ECF No. 2). The Plaintiff in this case was one of those inmates. The Order was filed in the originating case, as well as all of the newly opened cases. (ECF No. 2). All Plaintiffs were directed to submit a completed in forma pauperis (“IFP”) application and an Amended Complaint by October 4, 2022. (Id.). Plaintiffs were advised that failure to submit the required documents by the deadline would result in the dismissal of their case. (Id.). Plaintiff submitted his IFP application and his First Amended Complaint on October 4, 2022. (ECF Nos. 4, 5). He was granted IFP status on October 6, 2022. (ECF No. 6). On October 27, 2022, the Court entered an Order directing Plaintiff to submit a Second Amended Complaint to address deficiencies in his First Amended Complaint by November 17, 2022. (ECF No. 8).

When Plaintiff failed to submit his Amended Complaint, the Court entered a Show Cause Order directing Plaintiff to respond by December 27, 2022. (ECF No. 9). Both Orders advised Plaintiff that failure to respond by the deadline would result in the dismissal of his case. (ECF Nos. 8, 9). Neither Order was returned as undeliverable. To date, Plaintiff has failed to submit his Second Amended Complaint, has failed to submit his Show Cause response, and has not otherwise communicated with the Court. 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). III. ANALYSIS Plaintiff has failed to comply with two 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 First Amended Complaint (ECF No. 4) 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 21st day of February 2023. /s/ Barry A. Bryant HON. BARRY A. BRYANT UNITED STATES MAGISTRATE JUDGE