Resinos v. Ferguson et al

Filing 12

ORDER ADOPTING REPORT AND RECOMMENDATIONS ; granting 6 Motion to Dismiss. Case is dismissed with prejudice. Signed by Honorable Jimm Larry Hendren on January 27, 2012. (src)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
JIL ANTONIO RESINOS

PLAINTIFF

v.

Civil No. 11-5171

FERGUSON, HOLLY,
HUSKINS, and LEASE

DEFENDANTS
O R D E R

Now

on

this

27th

day

of

January,

2012,

come

on

for

consideration defendants' Motion To Dismiss (document #6) and the
Report And Recommendation Of The Magistrate Judge ("Second R&R")
(document #11), and from said documents, and plaintiff's Response
to the Motion To Dismiss, the Court finds and orders as follows:
1.

Plaintiff

complains

of

an

incident

that

allegedly

occurred on November 24, 2009, while he was incarcerated in the
Benton County Detention Center.

He alleges that while being

transported, his shackles caught in a drainage grate, causing him
to fall and injure his head.

He also alleges that he did not

receive proper medical care for the injury.
2.

Defendants

move

to

dismiss.

They

offer

documents

showing that plaintiff filed an identical claim in 2009, as
Western District of Arkansas Case 09-5281 ("Case 09-5281").

Case

09-5281 was dismissed on the Report And Recommendation of the
Magistrate Judge ("First R&R") to the effect that it was subject
to dismissal for "plaintiff's failure to keep the court informed
of his current address and his failure to prosecute this case."

Defendants rely on F.R.C.P. 41(b), which provides that
[i]f the plaintiff fails to prosecute or to comply with
these rules or a court order, a defendant may move to
dismiss the action or any claim against it. Unless the
dismissal order states otherwise, a dismissal under this
subdivision (b) and any dismissal not under this rule -except one for lack of jurisdiction, improper venue, or
failure to join a party under Rule 19 -- operates as an
adjudication on the merits.
3.

Plaintiff responded to the Motion To Dismiss, stating

that
[d]uring the period which resulted in Plaintiff's
dismissal, Plaintiff was in the notorious transit system
of the Department of Justice's Bureau of Prisons. As
such, Plaintiff did not have access to legal resources,
timely mail delivery, or even basic essentials such as
the addresses of either the Court or Defendant's
counsel.
As such, it was clearly impossible for
Plaintiff to prosecute his complaint in a reasonable
manner.
4.

The Magistrate Judge recommended granting the Motion to

Dismiss, noting that plaintiff did not object to the First R&R;
did not file a motion under F.R.C.P. 60 in Case 09-5281; and did
not appeal the dismissal of Case 09-5281.

Almost two months have

passed since entry of the Second R&R, and plaintiff has filed no
objections to it.
5.

In Hunt v. City of Minneapolis, Minn., 203 F.3d 524 (8th

Cir. 2000), the court fleshed out the parameters of Rule 41(b):
The Federal Rules of Civil Procedure permit dismissal
with prejudice "[f]or failure of a plaintiff to
prosecute or to comply with these rules or any order of
court." Despite the breadth of this language, however,
we have recognized that dismissal with prejudice is an
extreme sanction that should be used only in cases of
willful disobedience of a court order or where a
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litigant exhibits a pattern of intentional delay. This
does not mean that the district court must find that the
appellant acted in bad faith, but requires "only that he
acted intentionally as opposed to accidentally or
involuntarily."
203 F.3d at 527, internal citations omitted.
On this authority, it is arguable that plaintiff might have
obtained a reversal of the dismissal of Case 09-5281, had he
appealed. He might also have arguably had a basis to seek relief
under F.R.C.P. 60. Because he did neither, the dismissal stands,
and

this

Court

cannot

ignore

the preclusive

effect

of

that

dismissal dictated by Rule 41(b).
IT IS THEREFORE ORDERED that the Report And Recommendation Of
The Magistrate Judge (document #11) is adopted in toto.
IT IS FURTHER ORDERED that, for the reasons set forth in the
Report And Recommendation Of The Magistrate Judge, defendants'
Motion To Dismiss (document #6) is granted, and this matter is
dismissed with prejudice.
IT IS SO ORDERED.
/s/ Jimm Larry Hendren
JIMM LARRY HENDREN
UNITED STATES DISTRICT JUDGE

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