Brawley v. Correctional Medical Services Inc et al

Filing 30

REPORT AND RECOMMENDATIONS that pltf's complt be dismissed without prejudice for failure to comply with LR 5.5(c)(2), and for failure to respond to the Court's order 2 . 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 7/30/2009. Signed by Magistrate Judge H. David Young on 7/16/2009. (lej)

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IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION JOE BRAWLEY ADC #92799 V. CORRECTIONAL MEDICAL SERVICES, INC. et al. PROPOSED FINDINGS AND RECOMMENDATIONS INS T RUCT IONS The following recommended disposition has been sent to United States District Judge J. Leon Holmes. 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: 5:08CV00213 JLH/HDY DEFENDANTS PLAINTIFF 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 filed this complaint, pursuant to 42 U.S.C. 1983, on August 1, 2008. On April 9, 2009, the Court entered an order scheduling an evidentiary hearing for October 19, 2009 (docket entry #18). That order directed Plaintiff to file a list of proposed witnesses no later than May 11, 2009, and warned him that his failure to respond could result in the dismissal of his lawsuit. Plaintiff failed to file a list of witnesses, or other response, to the order by May 11, 2009. However, in light of his pro se status, on June 30, 2009, the Court entered an order granting Plaintiff an additional 11 days in which to file his list of proposed witnesses (docket entry #24). That order warned Plaintiff that his failure to file the list would result in the recommended dismissal of his complaint. More than 11 days has now passed since that order was entered, and Plaintiff has not filed his witness list or otherwise responded to the order. Under these circumstances, the Court concludes that Plaintiff's complaint should be dismissed without prejudice for failure to comply with Local Rule 5.5(c)(2), and for failure to respond to the Court's order. See Miller v. Benson, 51 F.3d 166, 168 (8th Cir. 2 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), and for failure to respond to the Court's order. 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 16 day of July, 2009. UNITED STATES MAGISTRATE JUDGE 3

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