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Thomas v. Harmon

December 21, 2005

MICHAEL WAYNE THOMAS, JR. ADC #611338 PLAINTIFF
v.
GREG HARMON, WARDEN, EAST ARKANSAS REGIONAL UNIT DEFENDANT



ORDER OF DISMISSAL

Plaintiff, who is currently incarcerated at the East Arkansas Regional Unit ("EARU") of the Arkansas Department of Correction, has commenced this pro se § 1983 action. See docket entry #2. Defendant Harmon, the EARU Warden, has filed a Motion to Dismiss, or in the Alternative, Motion for Summary Judgment and a Supporting Brief. See docket entries #14 and #15. For the reasons set forth herein: (1) the case will be dismissed, without prejudice, pursuant to Local Rule 5.5(c)(2); and (2) Defendant's Motion will be dismissed, as moot.*fn1

I. Discussion

On September 12, 2005, Plaintiff filed a Complaint alleging that Defendant Harmon violated his First Amendment right to access the courts when he refused to return to Plaintiff an envelope containing unspecified "evidence" to support several lawsuits he currently has pending in the Eastern District of Arkansas. See docket entry #2. On November 1, 2005, Defendant Harmon filed a Motion to Dismiss, or in the Alternative, Motion for Summary Judgment, in which he argues that the case should be dismissed because Plaintiff failed to properly and fully exhaust his administrative remedies. See docket entries #14 and #15.

On November 3, 2005, the Court issued an Order giving Plaintiff thirty days to file a Response to Defendant's Motion. See docket entry #16. Importantly, the Court advised Plaintiff that his failure to timely and properly file his Response "could result in the dismissal of his case, without prejudice, pursuant to Local Rule 5.5(c)(2)."*fn2 Id. As of the date of this Order, Plaintiff has failed to file a Response to Defendant's Motion, and the time for doing so has expired.

II. Conclusion

IT IS THEREFORE ORDERED THAT:

1. Pursuant to Local Rule 5.5(c)(2), this case is DISMISSED, WITHOUT PREJUDICE, due to Plaintiff's failure to timely and properly comply with the Court's November 3, 2005 Order (docket entry #16).

2. Defendant Harmon's Motion to Dismiss, or in the Alternative, Motion for Summary Judgment (docket entry #14) is DISMISSED, AS MOOT.

3. The Court CERTIFIES, pursuant to 28 U.S.C. § 1915(a)(3),*fn3 that an in forma pauperis appeal from this Order of Dismissal and the accompanying Judgment would not be taken in good faith.

Dated this 21st day of ...


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