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London v. Whittington

United States District Court, W.D. Arkansas, Hot Springs Division

March 7, 2016

BARRY D. LONDON PLAINTIFF
v.
WHITTINGTON, ET. AL. DEFENDANTS

ORDER

P. K. HOLMES, III CHIEF U.S. DISTRICT JUDGE

Plaintiff, Barry D. London, submitted this pro se action for filing on April 14, 2014. (Doc. 1). Currently before the Court is the issue of Plaintiff’s consistent pattern of willful disobedience to Court orders, failure to prosecute, and failure to appear at a scheduled summary judgment hearing for this case and for cause number 6:14-CV-06088 on January 14, 2016.[1]

I. BACKGROUND

A. Case 6:14-CV-06088

Plaintiff filed his complaint in case number 14-06088 on August 6, 2014. Plaintiff alleged he received an “unprofessional mental health evaluation” from the ADC Mental Health Staff on July 24, 2013. Plaintiff’s motion for in forma pauperis status (“IFP”) was granted on August 6, 2014. This order advised Plaintiff to keep the Court apprised of any address changes, and that failure to do so could result in dismissal of his case.

On April 23, 2015 the Court entered an order (Doc. 22) granting Defendants’ motion to depose plaintiff and several other motions. On May 1, 2015, the Court entered an order (Doc. 24) setting a summary judgment hearing for Plaintiff for October 8, 2015. A hearing for the instant case (discussed below) was set for the same day so that Plaintiff would only need to travel to Court once for both cases.

On May 4, 2015, mail was returned undeliverable for the Arkansas Department of Corrections (“ADC”) Ouachita River Unit, indicating Plaintiff had been paroled. On May 4, 2015, the Court obtained the home address of Plaintiff at his time of booking, and copies of the documents previously sent were re-sent to that address: 8 Howell Drive, Little Rock, AR 72204. On May 5, 2015, this mail was returned as undeliverable. On May 14, 2015, the Court entered an order to show cause directing Plaintiff to respond by May 28, 2015. (Doc. 26). On June 1, 2015, Plaintiff responded, stating he had given a forwarding address of 8 Howell Drive, Little Rock, AR, 72204 to the ADC mail room when he was paroled. Plaintiff’s current address of record for both cases at issue is the 8 Howell Drive address.

On August 19, 2015, Defendants filed a joint motion to dismiss for lack of prosecution. As grounds for the motion, Defendants stated they sent Plaintiff a notice of deposition by priority mail on July 23, 2015, at the 8 Howell Drive address. The deposition was scheduled for August 6, 2015, at the office of counsel for medical Defendants in Whitehall, AR. The court reporter and counsel for all Defendants were present. Plaintiff failed to appear for the deposition. He did not communicate with any counsel regarding the deposition before failing to appear.

On August 31, 2015, Plaintiff responded to the motion to dismiss, stating he did not get a letter about the deposition. He also stated he was not able to go to the deposition at counsel’s office in Whitehall, that Defendants’ attorneys knew this, and the attorneys had agreed to hold the deposition in Little Rock.

On October 1, 2015, the Court entered an order resetting the summary judgment hearing for this and the instant case for Thursday, January 14, 2016, so that Defendants would have the opportunity to depose Plaintiff and submit a summary judgment motion. (Doc. 42). The order was mailed to Plaintiff and was not returned as undeliverable. On November 13, 2015, the Court entered an order directing Plaintiff to respond by December 1, 2015, and inform the Court if he intended to appear for the January 14, 2016, hearings. This order was mailed to Plaintiff and was not returned as undeliverable. Plaintiff did not respond. Due to the prior rescheduling of the hearings, they were left set for January 14, 2016.

B. Instant Case

Plaintiff filed his complaint in the instant case on April 14, 2014 in the Eastern District of Arkansas. (Doc. 1). It was properly transferred to this District on April 24, 2014. (Doc. 2). Plaintiff’s claims in this case focus on two major disciplinaries. According to the disciplinary documents submitted by Plaintiff, the first involved the theft of some envelopes from another inmate. The second involved the theft of twelve pancakes, five sausages, and four packages of syrup from the kitchen. Plaintiff wrapped these in plastic and hid them in his pants. (Doc. 1, pp. 10-11). Plaintiff alleges he was falsely charged with, failed to receive due process for, and punished for these disciplinary infractions. He alleges the disciplinaries were racially motivated and were a procedural conspiracy. He also alleges they were filed as a retaliatory measure in response to earlier grievances he had filed. Plaintiff alleges he was verbally threatened, that the correctional officers were “unprofessional, ” and that documents or information was fabricated/false. He alleges he lost private property and damaged his arm in punitive isolation. Finally, he alleges his right foot dry skin disease was not treated. (Doc. 1, p. 45).

On March 30, 2015, mail sent to Plaintiff was returned as undeliverable, noting he was no longer with the Arkansas Department of Corrections (“ADC “). On April 16, 2015, mail was again returned as undeliverable. The Court entered an Order on April 16, 2015 changing his address to the one Plaintiff supplied at the time of his booking: 8 Howell Drive, Little Rock, AR, 72204. This address remains Plaintiff’s current address of record. Plaintiff was reminded it was his obligation to keep the Court informed of his address at all times and that failure to do so would result in dismissal. (Doc. 21).

On May 1, 2015, the Court entered an order setting Plaintiff’s summary judgment hearing for October 8, 2015--the same day as his hearing for case 14- 06088. This hearing was reset for January 14, 2016, due to ...


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