Boyd v. Armstrong et al

Filing 27

REPORT AND RECOMMENDATIONS that pltf's complt be dismissed without prejudice for failure to comply with LR 5.5(c)(2), and for failure to respond to the Court's order 2 6 . The Court certify that an ifp appeal taken from the order and judgment dismissing this action is considered frivolous and not in good faith. Objections to R&R due by 2/23/2009. Signed by Magistrate Judge H. David Young on 2/9/2009. (lej)

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IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS BATESVILLE DIVISION ALVESTER BOYD, III V. SHELIA ARMSTRONG et al. 1:08CV00043 BSM/HDY DEFENDANTS PLAINTIFF PROPOSED FINDINGS AND RECOMMENDATIONS INS T RUCT IONS The following recommended disposition has been sent to United States District Judge Brian S. Miller. 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. 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. 1 Failure to file timely 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 On August 22, 2008, Plaintiff filed a pro se complaint, pursuant to 42 U.S.C. 1983, and he was granted leave to proceed in forma pauperis ("IFP"). However, on January 5, 2009, Plaintiff filed a notice of change of address, which indicated that he was no longer incarcerated (docket entry #19). Accordingly, United States Magistrate Judge Jerry W. Cavaneau entered an order on January 6, 2009, directing Plaintiff to resubmit his application for leave to proceed IFP (docket entry #20).1 Plaintiff was directed to comply by February 6, 2009, and notified that his failure to do so would result in the recommended dismissal of his complaint. Plaintiff did not pay the filing fee, file a new IFP application, or otherwise respond to the Court's order by February 6, 2009. 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), On January 15, 2009, the case referral for this matter was reassigned to the undersigned (docket entry #23). 2 1 and for failure to respond to the Court's order. 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 for failure to respond to the Court's order. 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 9 day of February, 2009. UNITED STATES MAGISTRATE JUDGE 3

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