Johnson v. Maples et al

Filing 28

PROPOSED FINDINGS AND RECOMMENDATIONS that Pltf's complaint 2 5 9 be DISMISSED WITHOUT PREJUDICE for failure to comply with Local Rule 5.5(c)(2) and failure to prosecute; the Court certify that an ifp appeal taken the Order and Judgment dismissing this action is considered frivolous and not in good faith; Objections to R&R due by 3/20/2009. Signed by Magistrate Judge H. David Young on 3/6/09. (vjt) (Modified on 3/6/2009 to correct typographical error) (vjt).

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IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS BATESVILLE DIVISION FREDERICK JOHNSON ADC #124034 V. JOHN MAPLES et al. PROPOSED FINDINGS AND RECOMMENDATIONS INS T RUCT IONS The following recommended disposition has been sent to United States District Judge James M. Moody. Any party may serve and file written objections to this recommendation. Objections should be specific and should include the factual or legal basis for the objection. If the objection is to a factual finding, specifically identify that finding and the evidence that supports your objection. An original and one copy of your objections must be received in the office of the United States District Court Clerk no later than eleven (11) days from the date of the findings and recommendations. The copy will be furnished to the opposing party. Failure to file timely objections may result in waiver of the right to appeal questions of fact. If you are objecting to the recommendation and also desire to submit new, different, or additional evidence, and to have a hearing for this purpose before the District Judge, you must, at the same time that you file your written objections, include the following: 1. 2. Why the record made before the Magistrate Judge is inadequate. Why the evidence proffered at the hearing before the District Judge (if such a hearing is granted) was not offered at the hearing before the Magistrate Judge. NO: 1:08CV00020 JMM/HDY DEFENDANTS PLAINTIFF 1 3. The detail of any testimony desired to be introduced at the hearing before the District Judge in the form of an offer of proof, and a copy, or the original, of any documentary or other non-testimonial evidence desired to be introduced at the hearing before the District Judge. From this submission, the District Judge will determine the necessity for an additional evidentiary hearing, either before the Magistrate Judge or before the District Judge. Mail your objections and "Statement of Necessity" to: Clerk, United States District Court Eastern District of Arkansas 600 West Capitol Avenue, Suite A149 Little Rock, AR 72201-3325 DISPOSITION Plaintiff, who was held at the Arkansas Department of Correction's Delta Regional Unit, filed this pro se complaint, pursuant to 42 U.S.C. 1983, on April 7, 2008. On February 3, 2009, a scheduling order was entered, setting an evidentiary hearing for April 28, 2009 (docket entry #25). That order directed Plaintiff to submit a proposed witness list no later than March 3, 2009. Plaintiff was also warned that his failure to do so would subject his complaint to dismissal under Local Rule 5.5(c)(2), and for failure to prosecute.1 More than 30 days has passed, and Plaintiff has not submitted a proposed witness list, or otherwise responded to the order. In fact, the Court's scheduling order, which was mailed to Plaintiff's address of record, was returned as undeliverable, Local Rule 5.5(c)(2) states: "It is the duty of any party not represented by counsel to promptly notify the Clerk and the other parties to the proceedings of any change in his or her address, to monitor the progress of the case, and to prosecute or defend the action diligently. A party appearing for himself/herself shall sign his/her pleadings and state his/her address, zip code, and telephone number. If any communication from the Court to a pro se plaintiff is not responded to within thirty (30) days, the case may be dismissed without prejudice. Any party proceeding pro se shall be expected to be familiar with and follow the Federal Rules of Civil Procedure." 2 1 with a notation indicating that Plaintiff had been paroled (docket entry #27). Under these circumstances, the Court concludes that Plaintiff's complaint should be dismissed without prejudice for failure to comply with Local Rule 5.5(c)(2), and for failure to prosecute. See Miller v. Benson, 51 F.3d 166, 168 (8th Cir. 1995) (District courts have inherent power to dismiss sua sponte a case for failure to prosecute, and exercise of that power is reviewed for abuse of discretion). IT IS THEREFORE RECOMMENDED THAT: 1. Plaintiff's complaint be DISMISSED WITHOUT PREJUDICE for failure to comply with Local Rule 5.5(c)(2), and failure to prosecute. 2. The Court certify that an in forma pauperis appeal taken from the order and judgment dismissing this action is considered frivolous and not in good faith. DATED this 6 day of March, 2009. UNITED STATES MAGISTRATE JUDGE 3

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