Opinion
NO: 4:15CV00216 JM/PSH
09-17-2015
JASON VON SHAVER PLAINTIFF v. CHERYL EOFF et al DEFENDANTS
PROPOSED FINDINGS AND RECOMMENDATION
INSTRUCTIONS
The following Proposed Findings and Recommendation have been sent to United States District Judge James M. Moody Jr. You may file written objections to all or part of this Recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objection; and (2) be received by the Clerk of this Court within fourteen (14) days of this Recommendation. By not objecting, you may waive the right to appeal questions of fact.
DISPOSITION
Plaintiff Jason Von Shaver, who was formerly held at the Conway County Detention Center, filed a pro se complaint, pursuant to 42 U.S.C. § 1983, on April 15, 2015. On August 6, 2015, after mail sent to plaintiff at his address of record was returned as undeliverable, the Court entered an order directing plaintiff to file a notice of his current mailing address within 30 days, and warning him that his failure to do so would result in the recommended dismissal of his complaint (docket entry 11). More than 30 days have passed, plaintiff has not responded to the order, and mail sent to his address of record continues to be returned as undeliverable. Plaintiff is not listed as a current inmate on the public websites for the Arkansas Department of Correction or the Federal Bureau of Prisons. 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 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.
DATED this 17th day of September, 2015.
/s/_________
UNITED STATES MAGISTRATE JUDGE