Sims v. Carlton

Filing 15

REPORT AND RECOMMENDATIONS recommending 13 MOTION to Dismiss filed by Bobby Carlton be granted and case be dismissed. Objections to R&R due by 6/25/2009. Signed by Honorable Barry A. Bryant on June 8, 2009. (cap)

IN THE UNITED STATES DISTRICT COURT WE S T E R N DISTRICT OF ARKANSAS T E X A R K A N A DIVISION

B R Y A N T SIMS v. BOBBY CARLTON, Sheriff, N ev ad a County, Arkansas C iv il No. 4:08-cv-04094

PLAINTIFF

D E FE N D A N T

R E P O R T AND RECOMMENDATION OF THE MAGISTRATE JUDGE T h is civil rights action was filed by the Plaintiff, Bryant Sims (hereinafter Sims), pursuant to the provisions of 42 U.S.C. § 1983. He proceeds pro se and in forma pauperis. 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.
Wh en he filed this action, Sims was incarcerated in the Arkansas Department of Correction. O n January 9, 2009, Sims notified this Court that he was no longer incarcerated and was living in T ex arka n a, Arkansas (Doc. 9). On April 15, 2009, an order was entered (Doc. 12) granting Defendant's motion to compel. S im s was directed to provide Defendant with discovery responses by May 8, 2009. On May 14, 2009, Defendant filed a motion to dismiss (Doc. 13). In the motion, Defendant no ted he did not receive the discovery responses from Sims. Defendant asks that the case be dismissed b ased on Sims' failure to comply with the Court's order. On May 26, 2009, two docket entries were made by the court clerk reflecting that mail add ressed to Sims in Texarkana at the address he provided in January had been returned as u n d elive rab le. Further, on May 26, 2009, Defendant filed a notice of returned mail (Doc. 14).

Defendant indicates the envelope in which he mailed documents to Sims was returned with a notation retu rn to sender, moved, no forwarding address.

I therefore recommend that the motion to dismiss be granted (Doc. 13) and that this case be dismissed based on Sims' failure to obey the orders of this court, his failure to prosecute this action, and his failure to keep the Court and opposing counsel informed of his current address. Fed. R. Civ. P. 41(b); Rule 5.5 of the Local Rules of the Eastern and Western Districts of Arkansas. The parties have ten (10) 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 parties are reminded that objections must be both timely and specific to trigger de novo review by the district court. DATED this 8th day of June 2009. /s/ Barry A. Bryant HON. BARRY A. BRYANT UNITED STATES MAGISTRATE JUDGE