Cochran v. Brown

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS FAYETTEVILLE DIVISION JOSIAH TRESTEN COCHRAN PLAINTIFF v. Civil No. 5:22-cv-05252-PKH-MEF DEPUTY CHRISTIAN BROWN, Benton County Detention Center (BCDC); DR. ROBERTO SAEZ, Turn Key Health Clinics, LLC; NURSE TRACEY ROBINSON, Turn Key Health Clinics, LLC; and NURSE TRACY SANDERS, Turn Key Health Clinics, LLC DEFENDANTS

REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE This is a civil rights action filed by the Plaintiff pursuant to 42 U.S.C. § 1983. Plaintiff proceeds pro se and in forma pauperis. Pursuant to the provisions of 28 U.S.C. §§ 636(b)(1) and (3), the Honorable P. K. Holmes, III, Senior United States District Judge, referred this case to the undersigned for the purpose of making a Report and Recommendation. The case is before the Court on the Motion to Dismiss (ECF No. 13) filed by Defendant Nurse Tracey Robinson and Plaintiff’s failure to obey the Court’s Orders.

I. DISCUSSION On March 23, 2023, Defendant Nurse Tracey Robinson filed a Motion to Dismiss (ECF No. 13) for failure to state a claim. That same day, an Order (ECF No. 15) was entered directing Plaintiff to respond to the Motion to Dismiss. Plaintiff’s response was due by April 13, 2023.

Plaintiff was advised that failure to comply with the Order would result in dismissal of the case.

Plaintiff did not file a response to the Motion to Dismiss by April 13, 2023. On April 20, 2023, a Show Cause Order (ECF No. 19) was entered. Plaintiff was given until May 11, 2023, to show cause why he failed to obey the Order of the Court. Plaintiff was advised that if he failed to respond to the Show Cause Order the case shall be subject to dismissal.

To date, Plaintiff has not filed a response to the Motion to Dismiss or a response to the Show Cause Order. He has not requested an extension of time to file his responses. No mail has been returned as undeliverable. Plaintiff has failed to comply with the Court’s Orders (ECF Nos. & 19).

The Federal Rules of Civil Procedure specifically contemplate dismissal of a case on the ground that the plaintiff failed to prosecute or failed to comply with an order of the court. Fed. R. Civ. P. 41(b); Line 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).

Additionally, Rule 5.5(c)(2) of the Local Rules for the Eastern and Western Districts of Arkansas requires parties appearing pro se to monitor the case, and to prosecute or defend the action diligently. Here, however, rather than dismiss the entire case, the Court finds it appropriate to only grant Nurse Robinson’s Motion to Dismiss and dismiss all claims against her.

II. CONCLUSION For these reasons, it is recommended that Defendant Nurse Tracey Robinson’s Motion to Dismiss (ECF No. 13) be GRANTED and the claims against her be DISMISSED WITHOUT PREJUDICE based on Plaintiff’s failure to respond to the Motion to Dismiss; his failure to obey the Orders of the Court; and his failure to comply with Local Rule 5.5(c)(2). Fed. R. Civ. P. 41(b).

The parties have fourteen (14) 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 2nd day of June 2023.

/s/ HON. MARK E. FORD UNITED STATES MAGISTRATE JUDGE