Brazell v. Socia et al

Filing 54

ORDER Approving and Adopting 44 52 Proposed Findings and Recommendations as this Court's findings in all respects; granting 46 motion to dismiss; dismissing the 2 complaint without prejudice; and certifying that an in forma pauperis ap peal is considered frivolous and not in good faith. Mr. Brazell's complaint will be reopened if within 30 days from the date of this Order he pays the Arkansas Department of Correction $489.40, presents to the Court evidence of the payment, and files a motion to reopen his case. Signed by Judge Kristine G. Baker on 09/13/2016. (rhm)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
MICHAEL BRAZELL, JR
ADC #500711
v.

PLAINTIFF

Case No. 5:14-cv-00328-KGB-PH

GREGORY SOCIA et al.

DEFENDANTS
ORDER

The Court has reviewed two Proposed Findings and Recommendations submitted by United
States Magistrate Judge Patricia S. Harris (Dkt. Nos. 44, 52). The first Proposed Findings and
Recommendation recommends that plaintiff Michael Brazell Jr.’s complaint against a defendant
identified as “Ross” be dismissed for failure to provide the correct name for the defendant (Dkt. No.
44). The second Proposed Findings and Recommendation recommends that this Court should grant
the motion to dismiss filed by defendants Monica Litzsey and Gregory Socia (Dkt. No. 46). Mr.
Brazell filed an objection (Dkt. No. 53). After careful review of the two Proposed Findings and
Recommendations, and the objection filed by Mr. Brazell, including a de novo review of the record,
the Court concludes that both Proposed Findings and Recommendations should be, and hereby are,
approved and adopted as this Court’s findings in all respects (Dkt. Nos. 44, 52).
Pursuant to the Proposed Findings and Recommendations, Mr. Brazell must pay $489.40 to
the Arkansas Department of Correction as a result of his refusal to complete his deposition. In his
objections, Mr. Brazell contends that he could not complete his deposition because his mother had
recently passed away, and the defendants were asking questions that had nothing to do with his
lawsuit (Dkt. No. 53). He also contends that, if the defendants had completed his deposition “on the
date [they] was supposed to” in 2015, they “wouldn’t had this problem” (Id.). He requests that the
Court not grant the motion to dismiss.

Magistrate Judge Harris gave Mr. Brazell the opportunity to object to the motion to dismiss
filed by defendants Ms. Litzey and Mr. Socia (Dkt. No. 48). He did not do so. The Order granting
the defendants’ motion to depose Mr. Brazell did not constrain the defendants to complete that
deposition by a particular date or within a certain range of dates (Dkt. No. 17). Prior to Mr. Brazell
filing his objection to the Proposed Findings and Recommendations, there is nothing in the record
evidence before this Court to indicate that Mr. Brazell opposed or otherwise objected to the date of
his deposition. Finally, an action may be dismissed pursuant to Federal Rule of Civil Procedure
41(b) if a plaintiff has failed to comply with any order of the court. Aziz v. Wright, 34 F.3d 587, 589
(8th Cir. 1994) (citing Burgs v. Sissel, 745 F.2d 526, 528 (8th Cir.1984) (per curiam)). Mr. Brazell
willfully disregarded the Court’s Order allowing defendants to depose him. In the Order permitting
Mr. Brazell to proceed in forma pauperis, the Court informed Mr. Brazell that he was required to
follow all court rules (Dkt. No. 4). His failure to do so warrants dismissal without prejudice.
It is, therefore, ordered that the motion to dismiss filed by defendants Monica Litzsey and
Gregory Socia is granted, and plaintiff Michael Brazell, Jr.’s complaint is dismissed without
prejudice (Dkt. Nos. 46, 52). Mr. Brazell’s complaint against defendant “Ross” is dismissed without
prejudice for failure to provide a correct name (Dkt. No. 44). Mr. Brazell’s complaint will be
reopened if within 30 days from the date of this Order he pays the Arkansas Department of
Correction $489.40, presents to the Court evidence of the payment, and a files a motion to reopen
his case. The Court certifies that an in forma pauperis appeal is considered frivolous and not in good
faith.

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It is so ordered this 13th day of September, 2016.

KRISTINE G. BAKER
UNITED STATES DISTRICT JUDGE

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