PROPOSED FINDINGS AND RECOMMENDATIONS

JOE J. VOLPE, Magistrate Judge.

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 a 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 new hearing for this purpose before either the District Judge or Magistrate Judge, you must, at the time you file your written objections, include the following:

1. Why the record made before the Magistrate Judge is inadequate.

2. Why the evidence to be proffered at the new 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:

DISPOSITION

Brandon D. Thurman ("Plaintiff") filed this pro se 42 U.S.C. § 1983 action alleging that Defendants Edward Adams violated his constitutional rights. (Doc. No. 2) This matter was scheduled to proceed to jury trial on November 28, 2016, (Doc. No. 25), so on January 15, 2016, I appointed attorney David J. Throesch, Esq., to represent Mr. Thurman. (Doc. No. 24)

On June 9, 2016, Mr. Throesch filed a motion seeking dismissal of this case without prejudice. (Doc. No. 29) In the Motion, counsel explained that Mr. Thurman was released from custody and had failed to respond to any of his telephone calls or letters. Id. After reviewing the Motion, I scheduled a hearing to decide this matter. (Doc. No. 30) The clerk also mailed a notice of the hearing directly to Mr. Thurman at his last known address.

On June 16, 2016, I convened the hearing, but only Mr. Throesch and counsel for Mr. Adams, Mr. John R. Myers, Esq., appeared. Mr. Throesch requested the matter be dismissed without prejudice. Mr. Myers sought dismissal with prejudice.

After considering the facts in this matter, I find that dismissal of this case is appropriate. See FED.R.CIV.P. 41(b); Lang v. Wyrick, 590 F.2d 257 (8th Cir. 1978). I also find dismissal without prejudice is most appropriate. Navarro v. Chief of Police, 523 F.2d 214, 217 (8th Cir. 1975).

IT IS, THEREFORE, RECOMMENDED THAT:

1. Plaintiff's Motion of Attorney for Permission of the Court to Non Suit Without Prejudice (Doc. No. 29) be GRANTED.

2. This cause of action be dismissed without prejudice.

3. The Court certify, pursuant to 28 U.S.C. § 1915(a)(3), that an in forma pauperis appeal from any Order adopting these recommendations would not be taken in good faith.