Massey v. Dowell et al

Filing 13

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 3 . The Court certify that an ifp appeal taken from the order and judgmen t dismissing this action is considered frivolous and not in good faith. Objections to R&R due by 9/8/2009. Signed by Magistrate Judge H. David Young on 8/24/2009. (lej) (Docket text modified on 8/25/2009 to reflect correct linkage to DE#3 Order.) (mkf)

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS BATESVILLE DIVISION DARRELL D. MASSEY V. RHONDA DOWELL 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. 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. The detail of any testimony desired to be introduced at the 1 Failure to file timely NO:1:09CV00015 JMM/HDY DEFENDANTS PLAINTIFF

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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 Independence County Detention Facility, filed this complaint, pursuant to 42 U.S.C. § 1983, on March 13, 2009. On July 20, 2009, a scheduling order was entered, setting an evidentiary hearing for October 6, 2009 (docket entry #10). That order directed Plaintiff to file a list of proposed witness no later than August 20, 2009. That order also warned Plaintiff that his failure to respond within 30 days could result in the dismissal of his complaint. To date, Plaintiff has not filed a proposed witness list or otherwise responded to the order. Additionally, the scheduling order was mailed to Plaintiff's address of record, but was returned as undeliverable, with a notation that Plaintiff was no longer at the Independence County Detention Facility (docket entry #12). 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 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).

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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 24 day of August, 2009.

UNITED STATES MAGISTRATE JUDGE

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