Cincoski v. Bradley et al
ORDER ADOPTING 24 REPORT AND RECOMMENDATIONS and granting 20 Motion to Dismiss Case ; denying 26 Motion to Amend/Correct. The Case is dismissed. Signed by Honorable Jimm Larry Hendren on September 29, 2011. (src)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
DANIEL L. CINCOSKI
Civil No. 10-5241
NURSE RHONDA BRADLEY;
SHERIFF TIM HELDER; and
MAJOR RANDALL DENZER
O R D E R
consideration the following:
defendants' Motion To Dismiss (document #20);
the Report And Recommendation Of The Magistrate Judge
("R&R") (document #24);
plaintiff's Objection to the R&R (document #25); and
Complaint (document #26),
and from said documents, the Court finds and orders as follows:
Plaintiff Daniel L. Cincoski ("Cincoski") complains that
defendants denied him medical care for serious medical needs, in
violation of his constitutional right to such care.
On August 30, 2011, defendants filed their Motion To
Dismiss, stating that they had propounded written discovery to
Cincoski on January 4, 2011.
When no response was received,
defendants sought and obtained an Order, dated July 19, 2011,
compelling Cincoski to produce the discovery responses by August
Defendants asserted that they still had not received
responses to their written discovery, and moved to dismiss for
failure to prosecute and failure to obey a court order.
By R&R dated September 2, 2011, the Magistrate Judge
noted Cincoski's failure to respond to discovery requests and his
failure to comply with the July 19, 2011, Order, and recommended
that this Court dismiss for failure to prosecute and failure to
comply with the Court Order.
In his Objection, Cincoski states that he wishes to
amend his Complaint, and he attaches three documents from Ozark
He asks for more time to respond to discovery,
but he offers no reason for his failure to respond in a timely
Simultaneously with his Objection, Cincoski moved for leave
to amend his Complaint.
He does not, however, give any clue in
this motion as to why he believes he should be allowed to amend or
what new claims he would include in an amended complaint.
Cincoski's Objection to the R&R is without merit, and
will be overruled, in that it simply fails to address the basis
upon which the Magistrate Judge recommended dismissal.
The Court likewise finds the Motion To Amend without
While leave to amend should be freely granted, F.R.C.P.
15(a), it may be denied where it would be futile, Dennis v.
Dillard Department Stores, Inc., 207 F.3d 523, 525 (8th Cir.
Cincoski's failures to respond to discovery requests and
to obey the Magistrate Judge's Order indicate that he is not
willing to follow the Federal Rules of Civil Procedure and not
willing to obey Court orders, suggesting that any amendment will
simply prolong proceedings wherein Cincoski will continue to
ignore rules and orders. While Cincoski repeatedly points out his
pro se status, that status does not excuse these failures.
representation "does not excuse a party from complying with a
court's orders and with the Federal Rules of Civil Procedure."
Ackra Direct Marketing Corp. v. Fingerhut Corp., 86 F.3d 852, 856
(8th Cir. 1996).
IT IS THEREFORE ORDERED that plaintiff's Objection to the R&R
(document #25) is overruled.
IT IS FURTHER ORDERED that the Report And Recommendation Of
The Magistrate Judge (document #24) is adopted in toto.
IT IS FURTHER ORDERED that plaintiff's Motion For Leave To
File An Amended Complaint (document #26) is denied.
IT IS FURTHER ORDERED that defendants' Motion To Dismiss
(document #20) is granted, and this matter is dismissed.
IT IS SO ORDERED.
/s/ Jimm Larry Hendren
JIMM LARRY HENDREN
UNITED STATES DISTRICT JUDGE
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