Person v. Wright et al

Filing 63

ORDER denying 57 Judge Volpe's Recommendation; denying 55 second motion to dismiss; denying 61 motion for appointment of counsel; granting 61 motion for extension of time to respond to discovery; instructing the Clerk of the Court to ma il Mr. Person a copy of 45 defendants' discovery requests to his new address at the Cummins Unit; directing Mr. Person to mail his answers to the defendants' discovery requests to defendants on or before 10/18/2024; and referring further proceedings consistent with the terms of this Order back to Judge Volpe. Signed by Chief Judge Kristine G. Baker on 9/3/2024. (ajj)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION
JAMES DERREL PERSON
ADC #166462
v.

PLAINTIFF
Case No: 4:22-cv-01282 KGB

RODNEY WRIGHT, Sheriff,
Saline County Jail

DEFENDANTS
ORDER

Before the Court is the Recommended Disposition (“Recommendation”) submitted by
United States Magistrate Judge Joe J. Volpe recommending that the Court grant defendants Sheriff
Rodney Wright, Captain Wade Gilliam, Sergeant Jennifer Hallman, Sergeant Tonya Parker, and
Sergeant Christie Griffin’s motion to dismiss and dismiss without prejudice plaintiff James Derrel
Person’s amended complaint for failure to prosecute (Dkt. No. 57). Mr. Person filed a document
with the Court titled “Recommended Disposition dated March 11, 2024” which the Court
construes as Mr. Person’s objections to Judge Volpe’s Recommendation (Dkt. No. 61). After
careful consideration of the Recommendation, the objections, and a de novo review of the record,
the Court declines to adopt Judge Volpe’s Recommendation (Dkt. No. 57).
I.

Background

On October 19, 2023, defendants served written discovery requests on Mr. Person (Dkt.
No. 45-1). When Mr. Person failed to respond within 30 days as required by the Federal Rules of
Civil Procedure, defendants filed a motion to compel. (Dkt. No. 45). Judge Volpe entered an Order
compelling Mr. Person to respond to the outstanding discovery requests within 21 days (Dkt. No.
47). Mr. Person failed to respond.
On January 8, 2024, defendants filed a motion to dismiss (Dkt. No. 51). In an Order dated
January 25, 2024, Judge Volpe denied defendants’ motion to dismiss because it appeared from the

record that Mr. Person may have not received the defendants’ discovery requests or his Order (Dkt.
No. 54). Judge Volpe directed the Clerk of the Court to mail Mr. Person a copy of the defendants’
discovery requests, and Judge Volpe gave Mr. Person until February 28, 2024, to mail defendants
his responses (Id.). Judge Volpe warned Mr. Person, “[i]f Plaintiff does not timely answer the
discovery requests, Defendants may renew their Motion to Dismiss.” (Id. at 1). Judge Volpe also
warned Mr. Person that the Court would not grant any further extensions (Id., at 2). According to
the Court’s docket, the Clerk’s mailing of Judge Volpe’s January 25, 2024, Order and the
defendants’ discovery requests to Mr. Person were not returned undeliverable.
On March 5, 2024, defendants filed a second motion to dismiss asserting that Mr. Person
had not complied with the Court’s Order to prosecute his case by responding to defendants’
discovery (Dkt. No. 55, ¶ 5). Defendants move to dismiss Mr. Persons’s amended complaint
pursuant to Federal Rule of Civil Procedure 41 (Id.). Based on Mr. Person’s failure to respond to
defendants’ discovery requests, Judge Volpe issued his Recommendation recommending that this
Court grant defendants’ second motion to dismiss and dismiss Mr. Person’s amended complaint
without prejudice pursuant to Federal Rule of Civil Procedure 41(b) (Dkt. No. 57, at 2). Judge
Volpe stated in his Recommendation that Mr. Person could cure the defect by immediately
responding to defendants’ discovery requests (Dkt. No. 57).
On March 25, 2024, Mr. Person filed a document with the Court titled “Recommended
Disposition dated March 11, 2024,” which the Court construes as Mr. Person’s objections to Judge
Volpe’s Recommendation (Dkt. No. 61). In the filing, Mr. Person also notifies the Court of another
change of address, and moves for appointment of counsel, discovery, and extension of time to
complete discovery (Dkt. No. 61). In his objections, Mr. Person maintains that he did “not received
any defendant discovery requests” (Id., at 1). Mr. Person acknowledges receiving Judge Volpe’s

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Recommendation dated March 11, 2024, that stated that he was “compelled to respond” (Id.). Mr.
Person asks for “legal counsel to assist me with this and with getting my case back on track.” (Id.,
at 2). Mr. Person asks for the “discovery requests” that he was supposed to receive and for
additional time to respond (Dkt. No. 61, at 2). Finally, Mr. Person asks the Court not to dismiss
his complaint because he “intend[s] to pursue it” (Id.).
Defendants respond that Mr. Person’s opposition does not remedy or explain his failure to
prosecute this case (Dkt. No. 62). Defendants note that Mr. Person admits receiving documents
from the Court in March 2024 (Id., at 1). Defendants contend that Mr. Person is not entitled to
lodge what they characterizes as a “frivolous” lawsuit about black mold against defendants and
then refuse to pursue it while defendants spend time and resources defending the lawsuit (Id.).
Defendants maintain that Mr. Person has failed to follow two of Judge Volpe’s Orders and his
amended complaint must be dismissed (Id., at 1–2).
II.

Analysis

After careful review, the Court declines to adopt Judge Volpe’s Recommendation because
it is unclear to the Court whether Mr. Person received the defendants’ discovery requests and Judge
Volpe’s January 25, 2024, Order (Dkt. No. 57). The Court received a notice of change of address
for Mr. Person on January 18, 2024 (Dkt. No. 53). The docket reflects that Judge Volpe’s January
25, 2024, Order and the defendants’ discovery requests were mailed to Mr. Person on the date of
entry of the Order and were not returned undeliverable, but it is not clear on the record before the
Court when Mr. Person was transferred from the Tucker Unit to the Cummins Unit of the Arkansas
Division of Corrections and whether his mail was forwarded.
The next filing received from Mr. Person was the response to the Recommendation and
notice of change of address (Dkt. No. 61). In the filing, Mr. Person states that the only mail that

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he received was the Recommendation dated March 11, 2024 (Dkt. No. 61, at 1). Mr. Person
represents that he is “struggling to keep up with my case because [he is] not receiving filings or
correspondence,” and Mr. Person states that when he receives filings it “is not always
chronological.” (Id.). Accordingly, the Court denies defendants’ motion to dismiss (Dkt. No. 55).
To ensure that Mr. Person receives the discovery requests and recent filings, the Court
instructs the Clerk of the Court to mail Mr. Person a copy of the docket sheet in this case along
with defendant’s discovery requests (Dkt. No. 45-1), and a copy of Docket entries 54, 55, and 56
to his new address at the Cummins Unit. Mr. Person must mail his answers to the defendants’
discovery requests to defendants on or before July 25, 2024. The Court will not grant Mr. Person
any further extensions to respond to defendants’ discovery requests.
III.

Motion To Appoint Counsel

The Court denies Mr. Person’s motion for appointment of counsel (Dkt. No. 61). A pro se
litigant in a civil case does not have a statutory or constitutional right to appointed counsel.
Patterson v. Kelley, 902 F.3d 845, 850 (8th Cir. 2018); Phillips v. Jasper County Jail, 437 F.3d
791, 794 (8th Cir. 2006). However, the Court may, in its discretion, appoint counsel if the pro se
prisoner has stated a non-frivolous claim and “the nature of the litigation is such that plaintiff as
well as the court will benefit from the assistance of counsel.” Patterson, 902 F.3d at 850 (quoting
Johnson v. Williams, 788 F.2d 1319, 1322 (8th Cir. 1986)). In making this determination, the
Court must weigh and consider the following factors: (1) the factual and legal complexity of the
case; (2) the plaintiff’s ability to investigate the facts; (3) the existence of conflicting testimony;
and (4) the plaintiff’s ability to present his claims. Id.; Phillips, 437 F.3d at 794.

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The decision to appoint counsel is based on the circumstances of each case. After
considering all relevant factors, in particular the factual and legal complexity of this case, the Court
declines to appoint counsel at this stage in the case.
IV.

Conclusion

For these reasons, the Court declines to adopt Judge Volpe’s Recommendation (Dkt. No.
57). Therefore, it is ordered that:
1.

The Court denies defendants’ second motion to dismiss (Dkt. No. 55).

2.

The Court denies Mr. Persons’s motion for appointment of counsel (Dkt. No. 61).

3.

The Court grants Mr. Persons’s motion for extension of time to respond to
discovery (Dkt. No. 61). The Court instructs the Clerk of the Court to mail Mr.
Person a copy of defendants’ discovery requests (Dkt. No. 45-1) to his new address
at the Cummins Unit. Mr. Person must mail his answers to the defendants’
discovery requests to defendants on or before October 18, 2024. The Court will
not grant Mr. Person any further extensions to respond to defendants’ discovery
requests.

4.

The case is referred back to Judge Volpe for further proceedings consistent with the
terms of this Order.

So ordered this 3rd of September, 2024.
_____________________________
Kristine G. Baker
Chief United States District Judge

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