Ford v. Smith

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
DAMARIAN T. FORD 	PLAINTIFF
v. 	Civil No. 6:25-cv-06005-SOH-MEF
SHIFT SUPERVISOR JAMES SMITH
(Sergeant, ADC, ORCU) 	DEFENDANT
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This is a civil rights action filed under 42 U.S.C. § 1983. The case was directly assigned
to the undersigned Magistrate Judge pursuant to General Order 2024-02, but not all parties to the
action have consented to the jurisdiction of the undersigned. See 28 U.S.C. § 636(c). Accordingly,
the case will automatically be reassigned to Chief United States District Judge Susan O. Hickey
and referred to the undersigned for a report and recommendation pursuant to the provisions of 28
U.S.C. §§ 636(b)(1) and (3). Currently before the Court is Plaintiff’s failure to obey Court Orders
and failure to prosecute this case.
I. 	BACKGROUND
Plaintiff filed his Complaint in the Eastern District of Arkansas on January 2, 2025. (ECF
No. 1). It was transferred to this District on January 13, 2025. (ECF No. 3). On January 27, 2025,
the Court entered Orders directing Plaintiff to submit an in forma pauperis (IFP) application and
an Amended Complaint by February 18, 2025. (ECF Nos. 5, 6). Plaintiff submitted an incomplete
IFP application on February 6, 2025. (ECF No. 9). Attached to the IFP application was a note
from Plaintiff indicating that his mother had found him a lawyer named “Jimmy” and providing a
phone number. (Id. at 4).
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When Plaintiff failed to submit his Amended Complaint, the Court issued a Show Cause
Order directing Plaintiff to submit his Response by March 19, 2025. 	(ECF No. 9). 	Plaintiff
submitted an Amended Complaint on March 20, 2025. (ECF No. 10). The Complaint form was
not signed and dated. (Id.). Attached to the Amended Complaint was an affidavit from another
prisoner stating that he has to explain things to Plaintiff as though he is an 8–12-year-old, and his
education is limited to that of a “4 to 6 grader.” 	(ECF No. 10-1 at 6). 	Also attached to the
Complaint is a note by Plaintiff. It states he cannot read and is in Isolation, so he cannot go to the
library. (ECF No. 10-2). He further states he has other people helping him read his case. (Id.).
He is on disability and receives an SSI check for a learning disability. 	(Id.). 	He states that his
mother holds a power of attorney for him. He provides her name, address, and phone number and
indicates she may contact the Court on his behalf. (Id.).
Due to Plaintiff’s statements in his note and the inmate affidavit, the Court entered an Order
directing Plaintiff to complete a short questionnaire. 	This questionnaire is intended to help the
Court determine if it would be appropriate to appoint counsel, and it included questions concerning
his mother’s power of attorney. (ECF No. 11). Plaintiff was instructed to complete and return the
questionnaire by April 11, 2025. (Id.). When Plaintiff failed to do so, the Court entered a Show
Cause Order directing Plaintiff to submit his Response by May 6, 2025. (ECF No. 12). Neither
the Questionnaire nor the Show Cause Order was returned as undeliverable. To date, Plaintiff has
failed to submit either a completed questionnaire or a show cause Response. 	No attorney has
contacted the Court or entered an appearance in the case on Plaintiff’s behalf. Plaintiff’s mother
has not contacted the court. 	The Court researched the phone number provided for attorney
“Jimmy” and located a law firm in Little Rock. The Court called the law firm on May 19, 2025,
and was informed that Plaintiff was not a client.
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II. 	LEGAL STANDARD
Although 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 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 specifically contemplate dismissal of a
case on the grounds that 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) (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).
III. 	ANALYSIS
Plaintiff has failed to comply with two Court Orders. Plaintiff has failed to prosecute this
matter. Accordingly, pursuant to Federal Rule of Civil Procedure 41(b) and Local Rule 5.5(c)(2),
Plaintiff’s Complaint should be dismissed without prejudice for failure to comply with the Court’s
Local Rules and Orders and failure to prosecute this case.
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IV. 	CONCLUSION
Accordingly, it is RECOMMENDED that Plaintiff’s Motion to Proceed IFP (ECF No. 8)
be DENIED, and that his Amended Complaint (ECF No. 10) be DISMISSED WITHOUT
PREJUDICE.
Referral Status: This case should not remain referred because all matters have been
recommended for dismissal in this Report and Recommendation.
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 20th day of May 2025.
/s/
Mark E. Ford
HON. MARK E. FORD
UNITED STATES MAGISTRATE JUDGE
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