Lane v. Norton et al

Filing 25

RECOMMENDED DISPOSITION recommendning that the District Court dismiss 16 Plaintiff's Amended Complaint without prejudice, under Local Rule 5.5(c)(2) for failure to comply with the Court's Order of 11/16/09. Objections to R&R due no later than 14 days from the date the recommendation is received. Signed by Magistrate Judge Beth Deere on 12/21/09. (hph)

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IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS E A S T E R N DIVISION J O D A DARR LEE LANE A D C #601078 V. N O R T O N , et al. R E C O M M E N D E D DISPOSITION I. P r o c e d u r e for Filing Objections: T h e following Recommended Disposition has been sent to United States District J u d g e Brian S. Miller. Any party may serve and file written objections to this re c o m m e n d a tio n . Objections should be specific and should include the factual or legal b a s is for the objection. If the objection is to a factual finding, specifically identify that f in d in g and the evidence that supports your objection. An original and one copy of your o b je c tio n s must be received in the office of the United States District Court Clerk no later th a n fourteen (14) days from the date you receive the recommendation. A copy will be f u rn is h e d to the opposing party. Failure to file timely objections may result in waiver of th e right to appeal questions of fact. M a il your objections and "Statement of Necessity" to: C le rk , United States District Court E a s te rn District of Arkansas 6 0 0 West Capitol Avenue, Suite A149 L ittle Rock, AR 72201-3325 C A S E NO. 2:09CV00049-BSM-BD DEFENDANTS P L A IN T IF F II. B ackground: On May 4, 2009, Plaintiff filed this lawsuit pro se under 42 U.S.C. 1983 (docket e n try #1). Plaintiff was granted in forma pauperis status by Order of August 21, 2009 (# 1 2 ). In that Order, Plaintiff was also instructed to file an Amended Complaint within 2 0 days of the Order and (a) specifically name each Defendant whom he intends to sue; (b ) state specific facts explaining how each named Defendant acted to deny Plaintiff his rig h ts ; (c) state whether each Defendant is sued in an individual or official capacity, or b o th ; (d) state whether he filed a grievance based on the facts presented in the Complaint; a n d (e) state the specific relief requested. Plaintiff was notified that failure to timely c o m p ly with a Court order could result in dismissal of his case (#2, #12). Plaintiff failed to file an Amended Complaint on or before September 10, 2009, as o rd e re d . Accordingly, on September 23, 2009, this Court recommended dismissal of P la in tif f 's Complaint under Local Rule 5.5(c)(2) for failure to comply with the Court's O rd e r (#14). Plaintiff filed an Amended Complaint on October 1, 2009 (#16). For that re a s o n , the District Court did not dismiss this case. Plaintiff's Amended Complaint was screened in accordance with 28 U.S.C. 1915A. On October 20, 2009, this Court recommended that the claims against D e f e n d a n ts Parker, Crumpton, Williams, Outlaw, and the Arkansas Department of C o rre c tio n be dismissed with prejudice, and that Plaintiff be allowed to proceed on his c la im that Defendant Norton failed to protect him. However, because Plaintiff 2 specifically states that he brought this lawsuit against Defendants in their official capacity o n ly, this Court recommended that Plaintiff file a Second Amended Complaint so as to a d e q u a te ly state his claim against Defendant Norton in his individual capacity (#20). The C o u rt specifically instructed Plaintiff that if he sought to pursue his claim against D e f e n d a n t Norton, he must file a Second Amended Complaint raising this claim against D e f e n d a n t Norton in his individual capacity. The District Court adopted that re c o m m e n d a tio n by Order of November 16, 2009 (#23). Plaintiff's Second Amended C o m p la in t was due on or before December 7, 2009; however, it has not been filed. As th e record stands, Plaintiff has failed to state a claim against Defendant Norton in his in d iv id u a l capacity, and this lawsuit cannot proceed. III. C o n c lu s io n : T h e Court recommends that the District Court dismiss Plaintiff's Amended C o m p la in t without prejudice, under Local Rule 5.5(c)(2), for failure to comply with the C o u rt's Order of November 16, 2009 (#23). DATED this 21st day of December, 2009. ____________________________________ U N IT E D STATES MAGISTRATE JUDGE 3

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