Hanners v. Benton County Detention Center et al

Filing 16

REPORT AND RECOMMENDATIONS re 13 First MOTION to Dismiss Pursuant to Local Rule 5.5(c)(2) filed by Whales, Carrolton, Monroe, Torres. Objections to R&R due by 12/28/2009. Signed by Honorable Erin L. Setser on December 10, 2009. (src)

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS FAYETTEVILLE DIVISION RICHARD LEE HANNERS v. SGT. TORRES, et al. REPORT AND RECOMMENDATION Currently before the undersigned is the defendants' Motion to Dismiss Pursuant to Local Rule 5.5(c)(2). (Doc. 13) As grounds No. 08-5127 DEFENDANTS PLAINTIFF

for their motion, defendants state that they have been unable to effect service of their answer and discovery requests upon the plaintiff, as they were returned, marked "Return to Sender,

Refused, Unable to Forward" and "Return to Sender Don't Live at This Address." (Doc. 15 ¶ 2.) Plaintiff has not responded to the

motion to dismiss.

Further, a docket entry dated August 21, 2009,

reflects that documents sent to the plaintiff by the Court were returned as undeliverable "marked RTS ... [n]o new address

available." Local Rule 5.5(c)(2) requires pro se parties to notify the Clerk of the Court of any change in address. Plaintiff has failed

to do so and has otherwise failed to prosecute this action. Accordingly, the undersigned recommends that defendants' Motion to Dismiss (Doc. 13) be GRANTED and that this action be DISMISSED pursuant to Federal Rule of Civil Procedure 41(b) and Local Rule 5.5(c)(2). The parties have fourteen days from receipt of the 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 The

result in waiver of the right to appeal questions of fact.

parties are reminded that objections must be both timely and specific to trigger de novo review by the district court. DATED this 10th day of December, 2009.

/s/ Erin L. Setser HON. ERIN L. SETSER UNITED STATES MAGISTRATE JUDGE