Horn v. Peterson et al

Filing 14

ORDER ADOPTING #8 REPORT AND RECOMMENDATIONS in toto. This case is hereby DISMISSED WITHOUT PREJUDICE. Signed by Honorable Susan O. Hickey on June 4, 2024. (tmc)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
DUSTIN LEMUEL HORN
v.

PLAINTIFF
Case No. 6:24-cv-06049

MRS. PETERSON, Kitchen Supervisor,
Omega Unit; LIEUTENANT MARTIN,
Omega Unit; and SERGEANT ANDERSON,
Omega Unit

DEFENDANTS

ORDER
Before the Court is the Report and Recommendation filed by the Honorable Mark E.
Ford, United States Magistrate Judge for the Western District of Arkansas. ECF No. 8. Plaintiff
Dustin Lemuel Horn, representing himself in this action, has responded with timely objections.
ECF No. 12. The Court finds the matter ripe for consideration.
On April 10, 2024, Plaintiff filed his complaint pursuant to 42 U.S.C. § 1983, and his
claims center around the denial of medical care after Defendant allegedly broke his tooth from
biting into a foreign metal object in his food provided by the Omega Unit kitchen. ECF No. 1.
Plaintiff is suing all Defendants in their individual and official capacities. On April 24, 2024, the
Court entered an Order denying Plaintiff’s in forma pauperis (“IFP”) application and directing
him to pay the filing and administrative fees totaling $405.00 by May 14, 2024. ECF No. 5. To
date, Plaintiff has failed to pay the filing fee and has not sought an extension to do so. Judge
Ford recommends dismissing Plaintiff’s Complaint (ECF No. 1) without prejudice for failure to
prosecute this case and for failure to comply with the Court’s local rules and orders pursuant to
Federal Rule of Civil Procedure 41(b) and Local Rule 5.5(c)(2). ECF No. 8. Plaintiff objects.
ECF No. 12.

In his objections, Plaintiff asserts that on May 3, 2024, “Plaintiff was called to the
warden’s office and told a check in the amount of $405.00 was being mailed to the District Court
clerk,” and that within two hours that amount was removed from his commissary account. ECF
No. 12, p. 2. Plaintiff asserts that if the deadline to pay the federal filing fee was not met, it was
not because of him or something he did wrong, “but because of either the warden or his
business/finance secretary at the Omega Unit.” ECF No. 12-1, p. 1-2. Thus, Plaintiff requests
that the Court rule in favor of his objection. ECF No. 12, p. 2.
Pursuant to Federal Rule of Civil Procedure 41(b), a district court has the power to
dismiss an action based on “the plaintiff’s failure to comply with any court order.” Brown v.
Frey, 806 F.2d 801, 803-04 (8th Cir. 1986) (emphasis added). Plaintiff has still failed to ensure
the payment of his filing and administrative fees in accordance with the Court’s Order. See ECF
No. 5.

Consequently, the Court finds that Plaintiff’s Complaint (ECF No. 1) should be

dismissed.
The Court has conducted a de novo review and finds that the objections lodged by
Plaintiff offer neither law nor fact requiring departure from Judge Ford’s recommendation that
this case be dismissed. Accordingly, Plaintiff’s objections are overruled, and the Court adopts
the instant report and recommendation (ECF No. 8) in toto. This case is hereby DISMISSED
WITHOUT PREJUDICE. 1
0F

IT IS SO ORDERED, this 4th day of June, 2024.
/s/ Susan O. Hickey
Susan O. Hickey
Chief United States District Judge

1

After Plaintiff locates his money, he may refile his case.

2