Opinion
NO: 4:10CV01191 BRW/HDY
08-16-2011
TYREN TERRELL THOMPSON PLAINTIFF v. AARON DUVALL et al. DEFENDANTS
PROPOSED FINDINGS AND RECOMMENDATIONS INSTRUCTIONS
The following recommended disposition has been sent to United States District Judge Billy Roy Wilson. 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. Failure to file timely 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. Why the record made before the Magistrate Judge is inadequate.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.
2. Why the evidence proffered at the hearing before the District 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.
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
Plaintiff filed this complaint, pursuant to 42 U.S.C. § 1983, on September 7, 2010. On June 23, 2011, the Court entered an order scheduling this matter for an evidentiary hearing on November 28, 2011 (docket entry #17). That order directed Plaintiff to file a list of proposed witnesses no later than July 25, 2011, and warned him that his failure to respond could result in the dismissal of his complaint. When Plaintiff failed to file the list, the Court entered another order on July 26, 2011, which granted Plaintiff an additional 14 days to do so, and also directed him to confirm his address.Plaintiff was warned that his failure to respond would result in the recommended dismissal of his complaint.
Because it appeared that Plaintiff had moved to the Arkansas Department of Correction, the order was sent to his address of record, as well as the Arkansas Department of Correction.
More than 14 days have passed, and Plaintiff has not provided a list of proposed witnesses, or otherwise responded to the Court's scheduling order, or the order granting him additional time to do so. Additionally, Plaintiff has not confirmed his address. Under these circumstances, the Court concludes that Plaintiff's complaint should be dismissed without prejudice for 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 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).
IT IS THEREFORE RECOMMENDED THAT:
1. Plaintiff's complaint be DISMISSED WITHOUT PREJUDICE for failure to comply with Local Rule 5.5(c)(2), and failure to respond to the Court's order.
2. 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.
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UNITED STATES MAGISTRATE JUDGE