Jordan et al v. W C Brassell Detention Center et al

Filing 49

REPORT AND RECOMMENDATIONS that pltf's complt be dismissed without prejudice for failure to comply with LR 5.5(c)(2) 2 12 22 . The Court certify that an ifp appeal taken from the order and judgment dismissing this action is considered frivolous and not in good faith. Objections to R&R due by 1/20/2009. Signed by Magistrate Judge H. David Young on 1/5/2009. (lej)

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IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION KENYATA JORDAN et al. V. W.C. BRASSELL DETENTION CENTER 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. Failure to file timely 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. 1 NO: 5:08CV00101 JMM/HDY DEFENDANTS PLAINTIFFS 3. 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, who was a pre-trial detainee at the W.C. Dub Brassell Detention Center, filed this pro se complaint, pursuant to 42 U.S.C. 1983, on April 9, 2008 (docket entry #2), alleging that he was being housed with an individual who was HIV positive. On November 19, 2008, the Court entered an order scheduling an evidentiary hearing for March 2, 2009 (docket entry #46). That order directed Plaintiff to submit a proposed witness list, including Plaintiff himself, if he intended to testify, no later than December 19, 2008, and warned Plaintiff that his failure to respond to the order could result in the dismissal of his lawsuit. Plaintiff did not file his witness list, or otherwise respond to the order, by December 19, 2008. It appears from the record that Plaintiff is no longer incarcerated (docket entry #24). At this point, the Court is left to speculate as to whether Plaintiff has abandoned his claims, or wishes to continue with this lawsuit. It is unreasonable to expect Defendants to prepare for and attend an evidentiary hearing without knowing whether Plaintiff will even appear. Under these circumstances, 2 the Court concludes that Plaintiff's complaint should be dismissed without prejudice for failure to comply with Local Rule 5.5(c)(2). 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). IT IS THEREFORE RECOMMENDED THAT: 1. Plaintiff's complaint be DISMISSED WITHOUT PREJUDICE for failure to comply with Local Rule 5.5(c)(2). 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 5 day of January, 2009. UNITED STATES MAGISTRATE JUDGE 3

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