United States District Court, W.D. Arkansas, El Dorado Division
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
BARRY A. BRYANT, Magistrate Judge.
This is a civil rights action filed by the Plaintiff, Greg Gilliam, pursuant to 42 U.S.C. § 1983. Plaintiff is currently incarcerated in the Arkansas Department of Correction Randall L. Williams Correctional Facility in Pine Bluff, Arkansas. Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3)(2011), the Honorable Susan O. Hickey, 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 respond to a Court Order and Defendants' Motion for Summary Judgment. ECF No. 33. After careful consideration I make the following Report and Recommendation. unclear
Plaintiff originally submitted this pro se action for filing in the Eastern District of Arkansas on January 31, 2012. ECF No. 2. It was properly transferred to this Court on February 6, 2012. ECF No. 3. At the time Plaintiff filed his Complaint he was incarcerated in the Ashley County Detention Center ("ACDC"). Plaintiff is currently incarcerated in the Arkansas Department of Correction Randall L. Williams Correctional Facility in Pine Bluff, Arkansas ("ADC"). Plaintiff names Sheriff David Johnson, Nurse Susan Jankley, and Jail Administrator Steven Grievers as Defendants in his Complaint. In his Complaint, Plaintiff alleges his constitutional rights were violated, while incarcerated at the ACDC, when he was denied medical care for "several weeks" before receiving an x-ray of his broken hand and also when he was subsequently denied surgery for his hand because the ACDC did not want to pay for it. ECF No. 2.
Specifically, Plaintiff claims he broke his hand in October 2011 while incarcerated at the ACDC. ECF No. 2, p. 4. Plaintiff filed multiple grievances complaining about his hand, and after "several weeks" of no medical treatment, he was taken to Ashley County Medical Center. At the hospital, Plaintiff received a x-ray and was told he needed surgery on his hand. ECF No. 2. p. 4. Plaintiff alleges, rather than pay for his surgery he was released on bond to have his surgery and then arrested again "when the officials thought [he] had been out long enough to get [his] hand fixed." ECF No. 2, p. 4.
Defendants filed their Motion for Summary Judgment on January 5, 2015. ECF No. 34. On January 7, 2015, I ordered Plaintiff to return a notice, by January 21, 2015, to the Court indicating whether he requested the assistance of the Court to respond to Defendants' Motion for Summary Judgment. ECF No. 36. Plaintiff failed to respond by the Court imposed deadline. On January 22, 2015, I issued an Order to Show Cause directing Plaintiff to show cause, by January 30, 2015, as to why he failed to respond and also to respond indicating whether he requested the Court's assistance in responding to the Defendants' Motion for Summary Judgment. ECF No. 37. Plaintiff failed to respond to the Order to Show Cause by the Court imposed deadline. On February 5, 2015, I issued a Report and Recommendation recommending to the Honorable Susan O. Hickey, District Judge that this case be dismissed based on Plaintiff's failure to comply with the Court's orders and prosecute this matter. ECF No. 38. On February 9, 2015, Plaintiff filed the notice indicating he requested the Court's assistance in responding to Defendants' Motion for Summary Judgment. ECF No. 39. Based on this filing, Judge Hickey declined to adopt the February 5, 2015 Report and Recommendation to dismiss this action based on Plaintiff's failure to comply with the Court's orders and prosecute this action. ECF No. 40. On February 19, 2015, I issued a Questionnaire to Plaintiff to aide him in responding to Defendants' Motion for Summary Judgment. Plaintiff was ordered to return the completed questionnaire by March 5, 2015. ECF No. 41. Plaintiff failed to do so and as of the date of this Report and Recommendation, Plaintiff has not returned the Questionnaire.
Plaintiff has failed to comply with the Court's orders and his Complaint could be dismissed on these grounds alone, however, I will also provide a recommendation on Defendants' Motion for Summary Judgment herein.
1. Failure to Comply
While 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). Local Rule 5.5(c)(2) states 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 also specifically contemplate dismissal of a case with prejudice on the grounds 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) (the district court possess 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, " and such a dismissal may be with prejudice if there has been "a clear record of delay or contumacious conduct by the plaintiff.'" Brown v. Frey, 806 F.2d 801, 803-04 (8th Cir. 1986) (quoting Haley v. Kansas City Star, 761 F.2d 489, 491 (8th Cir. 1985)) (emphasis added). Dismissal with prejudice is an extreme sanction, and only to be used in cases of "willful disobedience of a court order" or "where a litigant exhibits a pattern of intentional dely." Hunt v. City of Minneapolis, 203 F.3d 524, 527 ...