Shell v. Otwell

• Court: District Court, W.D. Arkansas
• Decided: November 6, 2023
• Docket: 4:23-cv-04053
• Status: Unknown

Opinion

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

ROBERT D. SHELL PLAINTIFF

v. Civil No. 4:23-CV-04053-SOH-BAB

JAIL ADMINISTRATOR STEVEN OTWELL; LIEUTENANT GHORMLEY; NURSE PRACTIONER DARRELL WAYNE ELKIN; GUARD KATIE SHEETS; GUARD JACKSON; and GUARD WILL DEFENDANTS

ORDER

This is a civil rights action filed by the Plaintiff pursuant to 42 U.S.C. § 1983. Plaintiff proceeded pro se and in forma pauperis. Currently before the Court are two documents submitted by Defendant Elkin on September 18, 2023: (1) an “Affidaavit (sic) of Darrell Elkin” (which was docketed by the Court Clerk as an “Answer”) (ECF No. 25); and (2) a Motion for Summary Judgment1 (ECF No. 26). Defendant Elkin also proceeds pro se in this matter. Both documents are procedurally and substantively deficient pursuant to the Federal Rules of Civil Procedure and the Local Rules of this Court. A Summons to Defendant Elkin was returned executed on August 3, 2023, indicating any responsive pleading to Plaintiff’s Complaint was due August 15, 2023. (ECF No. 21). The first response Defendant Elkin filed in this matter was his unsigned2 Answer on September 18, 2023— approximately one month past the deadline. However, the Answer does not comply with Rule

1 The document filed at ECF No. 26 is untitled, however, it is clear from the text of the document, Defendant Elkin intended it to be a Motion for Summary Judgment. (ECF No. 26). 2 The Answer of Darrell Elkin is not signed by Defendant Elkin, as is required by Rule 11(a), Federal Rules of Civil Procedure, which states that “[e]very pleading, written motion, and other paper must be signed … by a party personally if the party is unrepresented.” (ECF No. 25, p. 4). Curiously, the Answer also contains an undated Acknowledgement. (Id. at 6). 8(b) of the Federal Rules of Civil Procedure. Defendant Elkin’s unsigned3 Motion for Summary Judgment also fails to comply with Rule 56 of the Federal Rules of Civil Procedure and Rules 7.2 and 56.1 of the Local Rules for the Eastern and Western Districts of Arkansas. Specifically, the Motion is not accompanied by a separate statement of facts not in dispute or a brief as required by the rules. (ECF No. 26, pp. 1- 2). Defendant Elkin also attached fifty (50) pages of unmarked exhibits to his Motion. Id. at 5- 55.

Although pro se pleadings are to be construed liberally, a pro se litigant is not excused from complying with substantive and procedural law. Bunch v. Univ. of Arkansas Bd. of Trs., 863 F.3d 1062, 1067 (8th Cir. 2017); Burgs v. Sissel, 745 F.2d 526, 528 (8th Cir. 1984). Even with a liberal construction, Defendant Elkin’s Answer and Motion for Summary Judgment fail to comply with the rules of this Court. Accordingly, the Clerk is DIRECTED to STRIKE Defendant Elkin’s Answer and Motion for Summary Judgment (ECF Nos. 25, 26) from the docket in this matter. The Court takes judicial notice that Defendant Elkin recently filed similarly deficient documents in at least two other cases in this District and those documents have been similarly addressed.4 Defendant is CAUTIONED that any further submissions to this Court which are not in compliance with procedural or substantive law may be stricken without further notice.

As Defendant Elkin’s Answer is heretofore stricken from the record, he is given until November 28, 2023 to file an answer which complies with the Federal Rules of Civil Procedure and Local Rules of this Court. Defendant Elkin is CAUTIONED that failure to file an appropriate

3 This document is also not signed by Defendant, and it contains the same undated Acknowledgement as Defendant Elkin’s Answer. 4 Swayze v. Marshall, et al., Civil No. 6:23-cv-06048-SOH; and Britt v. Shook, et al., Civil No. 2:23-cv-02077-TLB-MEF. responsive pleading to Plaintiff’s Amended Complaint by November 28, 2023 may result in the entry of a default judgment against him. IT IS SO ORDERED this 6th day of November 2023.

/s/ Barry A. Bryant HON. BARRY A. BRYANT UNITED STATES MAGISTRATE JUDGE