Clemmons v. Irby et al
PROPOSED FINDINGS AND RECOMMENDATIONS that Pltf's complaint be dismissed without prejudice for failure to comply with Local Rule 5.5(c)(2), and all pending motions be DENIED AS MOOT; Objections to R&R due by 3/27/2009. Signed by Magistrate Judge H. David Young on 3/13/09. (vjt)
IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS LITTLE ROCK DIVISION CHAD CLEMMONS V. 4:08CV04178 WRW/HDY PLAINTIFF
IRBY, Corporal, Faulkner County Detention Center; CRIDER, Corporal, Faulkner County Detention Center; FORD, Officer, Faulkner County Detention Center; and JACOBS, Officer, Faulkner County Detention Center
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION INS T RUCT IONS The following recommended disposition has been sent to United States District Judge William R. Wilson, Jr. 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. Why the record made before the Magistrate Judge is inadequate. 1 Failure to file timely
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 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, an inmate at the Faulkner County Detention Center, filed this action alleging civil rights violations by officials at the detention center, along with an incomplete Application to Proceed In Forma Pauperis. Plaintiff's Application was denied and he was also directed to submit an Amended Complaint, containing more specific information about the nature of his allegations against the Defendants. See docket entry #3. This Order, which also notified Plaintiff of his obligations under Local Rule 5.5(c)(2)1, was
Local Rule 5.5(c)(2): "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 2
mailed to Plaintiff on December 1, 2008, at this last-known address, the Faulkner County Detention Center, and has not been returned to the Court as undelivered. The Court has had no further communication from Plaintiff since the filing of his Complaint. Under the circumstances, the Court concludes that this case should therefore be dismissed, without prejudice, due to Plaintiff's failure to prosecute the action diligently and his failure to respond to the Court's order. Fed. R. Civ. P. 41(b)(district court may dismiss case for failure to prosecute or comply with court orders); Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962) (district court has power to dismiss sua sponte under Rule 41(b)); Brown v.Frey, 806 F.2d 801, 803-04 (8th Cir. 1986)(quoting Haley v. Kansas City Star, 761 F.2d 489, 491 (8th Cir. 1985))(a district court has the power to dismiss an action for the plaintiff's failure to comply with any court order; such a dismissal may be with prejudice if there has been "`a clear record of delay or contumacious conduct by the plaintiff'")(emphasis added); Garrison v. Int'l Paper Co., 714 F.2d 757, 759 (8th Cir. 1983)(it is well settled that the district court has inherent power, acting on its own initiative, to dismiss a cause of action with prejudice for want of prosecution). IT IS THEREFORE RECOMMENDED that Plaintiff's Complaint (docket entry #1) be dismissed without prejudice for failure to comply with Local Rule 5.5(c)(2), and all pending motions be DENIED AS MOOT. DATED this 13 day of March, 2009.
______________________________________ UNITED STATES MAGISTRATE JUDGE
expected to be familiar with and follow the Federal Rules of Civil Procedure. 3
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