Sanchez v. Doe et al, No. 5:2009cv00201 - Document 21 (E.D. Ark. 2009)
Court Description: REPORT AND RECOMMENDATIONS that pltf's complt be dismissed without prejudice for failure to comply with LR 5.5(c)(2), and for failure to respond to the Court's order 2 . All pending motions be denied as moot. The Court certify that an ifp appeal taken from the order and judgment dismissing this action is considered frivolous and not in good faith. Objections to R&R due no later than eleven days from the date of the findings and recommendations. Signed by Magistrate Judge H. David Young on 11/30/2009. (lej)
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Sanchez v. Doe et al Doc. 21 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION JORGE SANCHEZ V. PLAINTIFF NO: 5:09CV00201 BSM/HDY DOE et al. DEFENDANTS PROPOSED FINDINGS AND RECOMMENDATIONS INSTRUCTIONS The following recommended disposition has been sent to United States District Judge Brian S. Miller. 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 eleven (11) 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. 2. Why the record made before the Magistrate Judge is inadequate. 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 1 Dockets.Justia.com 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 On October 27, 2009, the Court entered an order scheduling a pre-jury evidentiary hearing for January 11, 2010 (docket entry #17). That order also directed Plaintiff to submit a list of any proposed witnesses, no later than November 27, 2009. Plaintiff was warned that his failure to respond to the order by November 27, 2009, could result in the dismissal of his complaint. Plaintiff has failed to respond to the order, and mail sent to Plaintiff has been returned as undeliverable, with one of the returned envelopes containing a notation that Plaintiff is no longer at that address (docket entries #16 & #19). Under these circumstances, Plaintiff’s complaint should be dismissed without prejudice for failure to comply with Local Rule 5.5(c)(2), and for failure 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 2 with Local Rule 5.5(c)(2), and for failure to respond to the Court’s order. 2. All pending motions be DENIED AS MOOT. 3. 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 30 day of November, 2009. UNITED STATES MAGISTRATE JUDGE 3
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