Rodriguez v. Ferguson et al

Filing 11

ORDER ADOPTING REPORT AND RECOMMENDATIONS 9 and dismissing the complaint without prejudice. The Court certifies that an ifp appeal would not be taken in good faith. Signed by Judge Kristine G. Baker on 4/9/13. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
NORTHERN DIVISION
RAFAEL RODRIGUEZ
v.

PLAINTIFF
Case No. 1:12-cv-00109-KGB-JTK

LT. FERGUSON, et al.

DEFENDANTS
ORDER

The Court has received proposed findings and recommendations from United States
Magistrate Judge Jerome T. Kearney. There have been no objections. After a de novo review of
those proposed findings and recommendations, the Court adopts the proposed findings and
recommendations with one modification. The Court determines this case should be dismissed
without prejudice.
In his proposed findings and recommendations, Judge Kearney states that this case
should be dismissed with prejudice for failure to state a claim upon which relief may be granted
(Dkt. No. 9). Specifically, Judge Kearney noted that plaintiff Rafael Rodriguez’s complaint
failed to state a claim upon which relief may be granted against defendants and that Mr.
Rodriguez had previously been provided in a January 10, 2013, Order with 30 days in which to
submit an amended complaint to clarify his allegations (Dkt. No. 8). Mr. Rodriguez failed to
submit an amended complaint within those 30 days. In the January 10, 2013, Order, Judge
Kearney cautioned Mr. Rodriguez that failure to respond to the Order could result in the
dismissal without prejudice of his complaint for failure to prosecute, pursuant to Local Rule
5.5(c)(2). Pursuant to Local Rule 5.5(c)(2) it is the duty of any party not represented by counsel
to notify promptly 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. If

any communication from the Court to a pro se plaintiff is not responded to within 30 days, the
case may be dismissed without prejudice.
For these reasons, this Court finds that this case should be dismissed without prejudice.
Here, Mr. Rodriguez, a pro se plaintiff, failed to state a claim upon which relief may be granted,
failed to comply with Local Rule 5.5(c)(2), and failed to respond to the Court’s January 10,
2013, Order. Accordingly,
1.

Plaintiff’s complaint against defendants is dismissed without prejudice for failure

to state a claim upon which relief may be granted, failure to comply with Local Rule
5.5(c)(2), and failure to respond to the Court’s January 10, 2013, Order.
2.

The Court certifies that an in forma pauperis appeal from an Order and Judgment

dismissing without prejudice this action will not be taken in good faith. 28 U.S.C. §
1915(a)(3).
An appropriate Judgment shall accompany this Order.
SO ORDERED this the 9th day of April, 2013.

________________________________
KRISTINE G. BAKER
UNITED STATES DISTRICT JUDGE