Hester v. Helder et al
ORDER declining to adopt 12 Report and Recommendations.; ORDER DIRECTING that an Amended Complaint be filed.( Amended Complaint due by 8/18/2014); denying as moot 9 Motion to Supplement and ORDER REFERRING CASE to Honorable Erin L. Setser. Signed by Honorable P. K. Holmes, III on July 31, 2014. (tg)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
Case No. 5:14-CV-05058
SHERIFF TIM HELDER; MAJOR RANDALL
DENZER; OFFICER CHARLES L. TUCKER;
WILLARD HOWARD; NURSE RHONDA
BRADLEY; and RICK HAYWOOD
Before the Court are the proposed findings and recommendations (Doc. 12) filed by United
States Magistrate Judge Erin L. Setser. Also before the Court are Plaintiff Johnny Hester’s timely
filed objections (Doc. 14).
The Magistrate recommends dismissal of this action for failure to obey an order of the Court
and for failure to prosecute. Mr. Hester responded by providing a current address and appearing to
explain that he failed to respond to the Court’s show-cause order (Doc. 11) because of his move.
The record reflects that the show-cause order was originally sent to Mr. Hester’s former address and
returned marked undeliverable.
The Court finds that Mr. Hester has established good cause and excusable neglect justifying
his failure to comply with the show-cause order in a timely fashion. The Court therefore DECLINES
TO ADOPT the report and recommendation of the Magistrate (Doc. 12).
The Clerk is directed to resend to Mr. Hester—along with this order—a copy of the order
entered by the Magistrate on March 6, 2014 (Doc. 8) and a court-approved § 1983 form for use in
filing an amended complaint.
Mr. Hester is ORDERED to file an amended complaint by August 18, 2014. As previously
directed by the Magistrate (Doc. 8), in the amended complaint, Mr. Hester must write short, plain
statements telling the Court: (1) the constitutional right(s) Mr. Hester believes was violated; (2) the
name of the Defendant(s) who violated the right; (3) exactly what the Defendant(s) did or failed to
do; (4) how the action or inaction is connected to the violation of Mr. Hester’s constitutional rights;
and (5) what specific injury Mr. Hester suffered because of each Defendant’s conduct. Mr. Hester
must clearly designate on the face of the document that it is a first amended complaint. The first
amended complaint must be retyped or rewritten in its entirety on the court-approved form and may
not incorporate any part of the original complaint by reference. Mr. Hester is advised that if he
fails to properly file an amended complaint, as ordered, by August 18, 2014, his complaint
WILL BE DISMISSED WITH PREJUDICE FOR FAILURE TO OBEY AN ORDER OF
THE COURT AND FAILURE TO PROSECUTE THIS ACTION.
IT IS FURTHER ORDERED that Mr. Hester’s pending motion to supplement the complaint
(Doc. 9) is DENIED AS MOOTED by this order.
The Clerk of Court is additionally directed to re-refer this matter to the Magistrate for
IT IS SO ORDERED this 31st day of July, 2014.
s/P. K. Holmes, III
P.K. HOLMES, III
CHIEF U.S. DISTRICT JUDGE
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