Opinion
4:15CV00490-JLH-JJV
12-04-2015
RONALD GENE TUCKER STEWART PLAINTIFF v. DOC HOLIADAY, Sheriff, Pulaski County Regional Detention Facility; et al. DEFENDANTS
PROPOSED FINDINGS AND RECOMMENDATIONS
INSTRUCTIONS
The following recommended disposition has been sent to United States District Judge J. Leon Holmes. 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 (if such a hearing is granted) was not offered at the hearing before the Magistrate Judge.
3. The details of any testimony desired to be introduced at the new hearing 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 new hearing.
From this submission, the District Judge will determine the necessity for an additional evidentiary hearing. 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
Ronald Gene Tucker Stewart ("Plaintiff") brought this action pro se and pursuant to section 1983 against Defendants Doc Holiaday and Frank Johnson. (Doc. No. 1.) Defendant Holiaday has been dismissed. (Doc. No. 18.) An attempt to serve Defendant Johnson was unsuccessful. (Doc. No. 16.) On October 1, 2015, I ordered Plaintiff to provide an alternate address at which Johnson could be served. (Doc. No. 17.) He was warned that failure to provide an address would result in a recommendation of dismissal. (Id.) He has not complied with or otherwise responded to my Order.
Based on the foregoing, I recommend dismissal of Defendant Johnson. Federal Rule of Civil Procedure 4(m) provides that if a defendant is not served within 120 days after the filing of the complaint, the Court, on motion or on its own after notice to the plaintiff, must dismiss the action without prejudice against that defendant. In excess of 120 days have passed since Plaintiff filed his Complaint.
IT IS, THEREFORE, RECOMMENDED that:
1. Defendant Frank Johnson be DISMISSED without prejudice.
2. The Court should certify, pursuant to 28 U.S.C. § 1915(a)(3), that an in forma pauperis appeal from an Order adopting this recommendation would not be taken in good faith.
Dated this 4th of December, 2015.
/s/_________
JOE J. VOLPE
UNITED STATES MAGISTRATE JUDGE