United States District Court, W.D. Arkansas, Hot Springs Division
JEREMY A. AVERY PLAINTIFF
CHIEF DEPUTY STEVEN ELROD, CAPTAIN RON HALVERSON, APN EARNEST ENNIS, DR. KARL WAGENHAUSER, SOUTHWEST CORRECTIONAL MEDICAL GROUP and SHERIFF MIKE MCCORMICK DEFENDANTS
MAGISTRATE JUDGE'S REPORT AND
BARRY A. BRYANT UNITED STATES MAGISTRATE JUDGE.
a civil rights action provisionally filed pursuant to 42
U.S.C. § 1983. Pursuant to the provisions of 28 U.S.C.
§ 636(b)(1) and (3)(2011), the Honorable Susan O.
Hickey, Chief United States District Judge, referred this
case to the undersigned for the purpose of making a Report
before the Court is Plaintiff's failure to obey a Court
Order and prosecute this case.
filed his Complaint on November 30, 2017. (ECF No. 1). He
alleges his constitutional rights were violated by the denial
of medical care while incarcerated as a pre-trial detainee in
the Garland County Detention Center. (Id. at 3-11).
Plaintiff is currently incarcerated in the Arkansas
Department of Correction (“ADC”) Ouachita River
Garland County Defendants (Elrod, McCormick, and Halverson)
filed a Motion for Summary Judgment on January 24, 2019. (ECF
No. 36). Plaintiff filed his Response on February 27, 2019.
(ECF No. 42). The Motion for Summary Judgment was granted on
July 17, 2019. (ECF No. 55).
Ennis and Wagenhauser filed their Motion for Summary Judgment
on July 15, 2019. (ECF No. 47). Defendant Southwest
Correctional Medical Group also filed a Motion for Summary
Judgment on July 15, 2019. (ECF No. 50). On July 16, 2019,
the Court entered Orders directing Plaintiff to Respond to
these Motions by August 6, 2019. (ECF No's 53, 54). Both
Orders advised Plaintiff that failure to submit the responses
by the deadline would result in either Defendants' facts
being deemed admitted or the dismissal of his case.
August 7, 2019, the Court entered an Order to Show Cause
directing Plaintiff to show cause why this action should not
be dismissed based on his failure to obey the order of this
Court and his failure to prosecute this action. (ECF No. 59).
Plaintiff was directed to provide his Response by August 28,
2019. (Id.). Plaintiff was then granted an extension
to Respond to the Order, giving him until September 16, 2019,
to do so. (EF No. 63).
filed his Response to the Order on September 16, 2019. (ECF
No. 64). Plaintiff states he is still waiting for a copy of
his medical records from C.H.I. St. Vincent Hospital in Hot
Springs and his medical records from the Garland County
Detention Center. (Id. at 1). He further states he
has undergone additional treatment and testing for his legs,
feet, and heart. (Id.). Plaintiff apologizes for the
delay and requests that his medical records from C.H.I. St.
Vincent Hospital in Hot Springs and the Garland County
Detention Center be provided to him. (Id. at 2).
former Garland County Defendants filed a Reply to
Plaintiff's Response on September 19, 2019. (ECF No. 65).
They state they mailed Plaintiff his medical file, including
the records from CHI, on September 28, 2019. (Id.).
Defendants Southwest Correctional Medical Group, Ennis, and
Wagenhauser (“Medical Defendants”) filed a
Response on September 19, 2019. (ECF No. 67). They state that
Plaintiff never sent them formal discovery requests, but they
nonetheless provided Plaintiff his medical and other records
in accordance with the Court's initial scheduling Order.
(Id. at 1-2). They further state that
Plaintiff's response is disingenuous and not supported by
the record because Plaintiff used the medical records he
claims he never received as exhibits in his Response (ECF No.
42) to the first Summary Judgment Motion by the Garland
County Defendants. (ECF No. 67 at 2-3). Nor did Plaintiff
argue in his Response that he was lacking any medical
Medical Defendants are correct. Further, the Garland County
Defendants attached his medical records from both the
detention center and CHI St. Vincent to their Statement of
Facts on January 24, 2019, and Plaintiff received copies of
all exhibits. (ECF No. 38). He also asked for and received
additional copies of documents from the Court, including
copies the summary judgment motion exhibits, when he alleged
he did not receive them. (ECF No's 28, 41). Finally, the
discovery deadline for this case was extended until March 15,
2019, (ECF No. 32), and Plaintiff did not file any Motions to
Compel discovery at any time during this case.
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
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 ...