Filed: Dec. 18, 2018
Latest Update: Dec. 18, 2018
Summary: PROPOSED FINDINGS AND RECOMMENDATIONS JEROME T. KEARNEY , Magistrate Judge . 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
Summary: PROPOSED FINDINGS AND RECOMMENDATIONS JEROME T. KEARNEY , Magistrate Judge . 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 ..
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PROPOSED FINDINGS AND RECOMMENDATIONS
JEROME T. KEARNEY, Magistrate Judge.
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 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 Javon Gardner ("Plaintiff") was in custody in the Poinsett County Detention Center when he filed this action under 42 U.S.C. § 1983 pro se. (Doc. No. 1). The Court granted Plaintiff's motion to proceed in forma pauperis on November 6, 2017. (Doc. No. 4). His claims against Defendant Eddie Weems ("Defendant") proceeded past screening. (Doc. No. 10). Defendant has filed a Notice explaining that correspondence and discovery requests sent to Plaintiff were returned as undeliverable. (Doc. No. 14). On November 14, 2018, Plaintiff was directed to provide the Court his new address within thirty days or risk dismissal of his case under Local Rule 5.5(c)(2). (Doc. No. 16). The Court's November 14, 2018 Order, along with other mail from the Court, was also returned as undeliverable. (Doc. Nos. 17, 18).
Local Rule 5.5(c)(2) reads:
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. A party appearing for himself/herself shall sign his/her pleadings and state his/her address, zip code, and telephone number. 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. Any party proceeding pro se shall be expected to be familiar with and follow the Federal Rules of Civil Procedure.
LOCAL RULE 5.5(c)(2) (emphasis added).
Plaintiff was advised of his duties under Rule 5.5(c)(2) within days of filing his Complaint. (Doc. No. 3). Plaintiff, however, apparently changed address but failed to update his contact information with the Court. Further, Plaintiff has not otherwise responded to the Court's November 14, 2018 Order.
Accordingly, the Court recommends that Judge Holmes DISMISS Javon Gardner's Complaint (Doc. No. 2), without prejudice, under Local Rule 5.5(c)(2). Furthermore, Judge Holmes should certify that, pursuant to 28 U.S.C. § 1915(a)(3), an in forma pauperis appeal taken from the order and judgment dismissing this action is considered frivolous and not in good faith.
IT IS SO RECOMMENDED.
