Daniels v. DeLassuss

Filing 10

REPORT AND RECOMMENDATIONS re 2 Complaint filed by Rodney Daniels; Objections to R&R due by 6/25/2009. Signed by Honorable Barry A. Bryant on June 8, 2009. (cnn)

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IN THE UNITED STATES DISTRICT COURT WE S T E R N DISTRICT OF ARKANSAS E L DORADO DIVISION R O D N E Y DANIELS v. ROY DeLASSUSS C iv il No.1:09-cv-01002 PLAINTIFF D E FE N D A N T R E P O R T AND RECOMMENDATION OF THE MAGISTRATE JUDGE P lain tiff, Rodney Daniels, filed this action pursuant to the provisions of 42 U.S.C. 1983. Pursuant to the provisions of 28 U.S.C. 636(b)(1) and (3)(2007), the Honorable Harry F. Barnes, United States District Judge, referred this case to the undersigned for the purpose of making a report and recommendation. T h e case was initially filed in the Eastern District of Arkansas and then transferred to this d istrict. At the time he filed the complaint, Plaintiff was incarcerated in the Bradley County Jail. With h is complaint, Plaintiff submitted an application for leave to proceed in forma pauperis (IFP)(Doc. 1). H o w ev er, he failed to submit with his application a certification regarding inmate funds held in his nam e. For this reason, the IFP application was not complete. A n order was entered (Doc. 8) directing the clerk to mail the Plaintiff a blank IFP application. P lain tiff was given until April 30, 2009, to either complete, sign, and return the application including hav ing the certificate portion of the IFP application completed by the appropriate detention center o fficial or pay the $350 filing fee. Plaintiff was advised that if he failed to return the completed IFP ap p licatio n or pay the $350 filing fee by April 30, 2009, the complaint would become subject to su m m ary dismissal for failure to obey an order of the court. On April 29, 2009, a docket entry was made indicating the court's order was returned as u n d eliv erab le. On May 5, 2009, a notice of change of address was made on Plaintiff's behalf utilizing the home address Plaintiff had provided detention center officials. The court's order was re-mailed to P lain tiff at the new address. Mail sent to this address has not been returned. To date, the IFP application has not been returned or the filing fee paid. Plaintiff has not sought an extension of time to return the IFP application or pay the filing fee. Plaintiff has not communicated w ith the court in anyway. I therefore recommend that this case be dismissed based on Plaintiff's failure to prosecute this actio n and his failure to obey the order of the court. Fed. R. Civ. P. 41(b). The Plaintiff has ten days from receipt of this report and recommendation in which to file written objections pursuant to 28 U.S.C. 636(b)(1). The failure to file timely objections may result in waiver of the right to appeal questions of fact. The Plaintiff is reminded that objections must be both timely and specific to trigger de novo review by the district court. DATED this day 8th of June 2009. /s/ Barry A. Bryant BARRY A. BRYANT UNITED STATES MAGISTRATE JUDGE

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