Opinion
3:14CV00203-DPM-JTK
04-07-2015
TOMMY PEREZ, JR. PLAINTIFF v. DALE COOK, et al. DEFENDANTS
PROPOSED FINDINGS AND RECOMMENDATIONS
INSTRUCTIONS
The following recommended disposition has been sent to United States District Judge D. P. Marshall Jr. 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.
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.
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.
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 Perez filed this pro se 42 U.S.C. § 1983 action while incarcerated at the Mississippi County Detention Facility (Jail), and the Court granted his Motion to Proceed in forma pauperis (ifp) on August 26, 2014 (Doc. No. 4). Perez later filed Notice of a change in his address, which indicated his release from incarceration (Doc. No. 37). Therefore, by Order dated February 13, 2015, this Court directed Perez to submit an updated IFP Motion within thirty days, noting that failure to respond could result in the dismissal of this action for failure to prosecute (Doc. No. 38).
The February 13, 2015 Order was mailed to Plaintiff's old address and returned to Sender on March 3, 2015 (Doc. No. 39). The Clerk then re-mailed the Order to Plaintiff's new address. (Id.)
However, as of this date, Plaintiff has not filed a new IFP. Therefore, pursuant to Local Rule 5.5(c)(2), his complaint should be dismissed without prejudice, for failure to prosecute. Accordingly,
Rule LR5.5(c)(2) of the Rules of the United States District Courts for the Eastern and Western Districts of Arkansas provides as follows:
It is the duty of any party not represented by counsel to promptly notify the Clerk and the other parties to the proceedings of any change in his or her address, to monitor the progress of the case and to prosecute or defend the action diligently . . . . If any communication from the Court to a pro se plaintiff is not responded to within thirty (30) days, the case may be dismissed without prejudice. . . .
IT IS, THEREFORE, RECOMMENDED that Plaintiff's complaint be DISMISSED without prejudice for failure to prosecute.
IT IS SO RECOMMENDED this 7th day of April, 2015.
/s/_________
JEROME T. KEARNEY
UNITED STATES MAGISTRATE JUDGE