Elder v. Smith et al

Filing 117

ORDER ADOPTING 115 REPORT AND RECOMMENDATIONS in toto; Plaintiffs Amended Complaint 18 is hereby DISMISSED WITH PREJUDICE. Defendants Motion for Summary Judgment 97 and Motion for Facts to be Deemed Admitted 111 are hereby DENIED as MOOT. Signed by Honorable Susan O. Hickey on May 10, 2024. (tmc)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
LYNDON ELDER
v.

PLAINTIFF
Case No. 6:22-cv-6105

J. SMITH, et al.

DEFENDANTS
ORDER

Before the Court is a Report and Recommendation (“R&R”) issued by the Honorable
Christy D. Comstock, United States Magistrate Judge for the Western District of Arkansas. ECF
No. 115.
Judge Comstock recommends that Plaintiff’s claims be dismissed with prejudice for
multiple and continuing failures to comply with orders of the Court and to prosecute this matter in
violation of Local Rule 5.5(c)(2) and Federal Rule of Civil Procedure 41(b), respectively. Judge
Comstock emphasizes Plaintiff’s failure to respond to Defendants’ Motion for Summary Judgment
(ECF No. 97) in the nearly six months since it was filed on November 9, 2023. Judge Comstock
notes that the Court previously issued an Order to Show Cause (ECF No. 113) requiring Plaintiff
to show cause as to why he had failed to respond to Defendants’ motion for summary judgment
and that Plaintiff’s response (ECF No. 114) provided no justification for his inaction. Further
noting the amount of time, expense, and work put forth by Defendants in litigating this matter,
Judge Comstock concludes that dismissal with prejudice is warranted under Federal Rule of Civil
Procedure 41(b). 1 Judge Comstock further recommends that Defendants’ Motion for Summary
0F

Judge Comstock also notes that the Court has taken significant steps to accommodate Plaintiff’s requests in this
matter, such as ordering Defendants to provide the Court with Defendant J. Smith’s personnel file for in camera review
to determine what information Plaintiff could receive. ECF No. 103.
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Judgment (ECF No. 97) and Motion for Facts to be Deemed Admitted (ECF No. 111) be denied
as moot.
Plaintiff filed a timely objection. ECF No. 116, 116-7. However, Plaintiff fails to offer
any substantive rebuke of Judge Comstock’s recommendation. The vast majority of Plaintiff’s
objection consists of somewhat coherent and barely legible ramblings about the facts of the case
and his perception of the Court’s bias. The closest Plaintiff comes to making a substantive
objection is his assertion that attempts to retain counsel delayed his response.

However,

correspondence with a certain attorney (ECF Nos. 116-1, 116-2, 116-5) does not show that an
attorney-client relationship was ever established or provide any justification for Plaintiff’s
complete failure to abide by the Court’s demands. 2 Therefore, the Court does not consider
1F

Plaintiff’s objection sufficiently specific to require a de novo review of Judge Comstock’s R&R.
See Griffini v. Mitchell, 31 F.3d 690, 692 (8th Cir. 1994) (noting that specific objections shift a
court’s review from one which scrutinizes for plain error to one in which the issues are reviewed
de novo); and see 28 U.S.C. § 636(b)(1).
Upon review, finding no clear error on the face of the record and that Judge Comstock’s
reasoning is sound, the Court adopts the R&R (ECF No. 115) in toto. Plaintiff’s Amended
Complaint (ECF No. 18) is hereby DISMISSED WITH PREJUDICE pursuant to Federal Rule
of Civil Procedure 41(b) and Local Rule 5.5(c)(2). Defendants’ Motions for Summary Judgment
(ECF No. 97) for Facts to be Deemed Admitted (ECF No. 111) are hereby DENIED as MOOT.
IT IS SO ORDERED, this 10th day of May, 2024.
/s/ Susan O. Hickey
Susan O. Hickey
Chief United States District Judge
Though Plaintiff shows he established contact with an attorney in October 2023, no individual ever entered an
appearance in this matter as counsel of record for Plaintiff or attempted to file anything on Plaintiff’s behalf.

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