Sweigart v. Johnson et al

Filing 10

RECOMMENDED DISPOSITION recommending that the District Court dismiss 2 Plaintiff's Complaint without prejudice, under Local Rule 5.5(c)(2) and the Federal Rules of Civil Procedure. Objections to R&R due 11 days from the date the recommendation is received. Signed by Magistrate Judge Beth Deere on 11/9/09. (hph)

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UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS W E S T E R N DIVISION N E I L D. SWEIGART V. C A R L JOHNSON, 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: No. 4:09CV00501-JLH-BD P L A IN T IF F DEFENDANTS T h e following Recommended Disposition has been sent to Chief United States D is tric t Judge J. Leon Holmes. 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 eleven (11) 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 II. B ackground: On July 15, 2009, Plaintiff filed this lawsuit pro se under 42 U.S.C. 1983 (d o c k e t entry #2). Plaintiff also submitted a motion to proceed in forma pauperis (#1). The motion was denied by Order of August 10, 2009 (#5) because Plaintiff's application w a s incomplete in that it did not include a signed affidavit with a description of Plaintiff's p e rs o n a l assets and possible sources of income, as required by 28 U.S.C. 1815(a). Plaintiff was directed to submit a new request to proceed in forma pauperis or pay the $ 3 5 0 .0 0 statutory filing fee within 30 days of entry of that Order (#5). Plaintiff was f u rth e r directed to file an Amended Complaint specifically describing the constitutional v io la tio n he allegedly suffered and the unconstitutional conduct of each named D e f e n d a n t. Plaintiff filed notice of change-of-address (#7) on September 14, 2009, informing th e Court that he had been released from the custody of the Pulaski County Detention F a c ility. Because it was unclear whether Plaintiff had received the Court's Order of A u g u s t 10, 2009, a second copy of the Order was mailed to Plaintiff at his new address on S e p te m b e r 28, 2009, along with an Application to Proceed In Forma Pauperis. Plaintiff w a s directed to comply with the Court's August 10, 2009, Order on or before October 28, 2 0 0 9 (#8). Plaintiff was instructed that failure to comply with the Order could result in d is m is s a l of this action under Local Rule 5.5(c)(2) and the Federal Rules of Civil P ro c e d u re . 2 Plaintiff has failed either to file an Amended Complaint or to submit a complete a p p lic a tio n to proceed in forma pauperis, and the time allowed for doing so has passed. III. C o n c lu s io n : T h e Court recommends that the District Court dismiss Plaintiff's Complaint w ith o u t prejudice, under Local Rule 5.5(c)(2) and the Federal Rules of Civil Procedure, f o r failure to comply with the Court's Orders of August 10, 2009 (#5) and September 28, 2 0 0 9 (#8). DATED this 9th day of November, 2009. ____________________________________ U N IT E D STATES MAGISTRATE JUDGE 3

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