Collins et al v. Norris

Filing 6

REPORT AND RECOMMENDATIONS that pltf Brandon Lacy's motion to be dismissed as a party be granted, Lacy's claims be dismissed without prejudice, and Lacy's name be removed as a party pltf 5 . Pltf Kingrale Collins' complt be dism issed without prejudice for failure to pay the $350 filing fee, failure to comply with LR 5.5(c)(2), and 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 no later than 14 days from the date of the findings and recommendations. Signed by Magistrate Judge H. David Young on 12/9/2009. (lej)

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IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION KINGRALE COLLINS ADC #SK945 BRANDON LACY ADC #SK973 V. LARRY NORRIS 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 fourteen (14) 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 1 Failure to file timely NO: 5:09CV00340 JMM/HDY DEFENDANT PLAINTIFFS Judge (if such a hearing is granted) was not offered at the hearing before the Magistrate Judge. 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 Plaintiffs Kingrale Collins and Brandon Lacy filed this complaint, pursuant to 42 U.S.C. 1983, on November 2, 2009. Neither Plaintiff paid the filing fee, and only Collins filed an application for leave to proceed in forma pauperis ("IFP") (docket entry #2). Collins's application indicated that he had sufficient assets to pay the filing fee. Accordingly, on November 5, 2009, the Court denied Collins's IFP application, and directed him to pay the $350.00 filing fee within 30 days (docket entry #5). That same order directed Lacy to pay the filing fee, or file an application for leave to proceed IFP within 30 days. More than 30 days has passed, and Collins has not paid the filing fee, or otherwise responded to the order. Under these circumstances, the Court concludes that Collins's complaint should be dismissed without prejudice for failure to pay the filing fee, 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 2 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). Lacy has not paid the filing fee, or filed an IFP application, but has filed a motion to be dismissed as a party, in which he asserts that he was never part of this lawsuit (docket entry #5). For good cause shown, Lacy's motion should be granted. IT IS THEREFORE RECOMMENDED THAT: 1. Plaintiff Brandon Lacy's motion to be dismissed as a party (docket entry #5) be GRANTED, Lacy's claims be DISMISSED WITHOUT PREJUDICE, and Lacy's name be removed as a party Plaintiff. 2. Plaintiff Kingrale Collins's complaint be DISMISSED WITHOUT PREJUDICE for failure to pay the $350.00 filing fee, failure to comply with Local Rule 5.5(c)(2), and failure to respond to the Court's order. 3. 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 9 day of December, 2009. UNITED STATES MAGISTRATE JUDGE 3

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