Gray v. Ford et al

Filing 53

REPORT AND RECOMMENDATIONS that pltf's 3 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; 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 10/1/2009. Signed by Magistrate Judge H. David Young on 9/17/09. (vjt)

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION TERRY D. GRAY V. DONNY FORD et al. NO: 5:08CV00234 WRW/HDY DEFENDANTS PLAINTIFF

PROPOSED FINDINGS AND RECOMMENDATIONS 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. 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 Failure to file timely

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 Because of Plaintiff's failure to respond to an order directing him to provide the names of certain Doe Defendants (docket entry #43), and because mail sent to his address of record had been returned as undeliverable (docket entry #47), it appeared that Plaintiff may have abandoned his claims in this case. Thus, the Court entered an order on September 2, 2009, directing Plaintiff to submit a statement of his intent to continue with the prosecution of this case (docket entry #50). That order warned Plaintiff that his failure to submit such a statement within 11 days would be construed as his wish to no longer pursue his complaint, and would result in its recommended dismissal. More than 11 days has passed, and Plaintiff has not filed a statement indicating that he intends to continue with this case, and he has not otherwise responded to the order. Additionally, the order, which was mailed to Plaintiff's address of record, was returned as undeliverable (docket entry #52). 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 2

respond to the Court's order. 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), 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 17 day of September, 2009.

UNITED STATES MAGISTRATE JUDGE

3