United States District Court, E.D. Arkansas, Northern Division
August 29, 2014
JOSHUA A. HILBURN, ADC #145777, Plaintiff,
JOHN MAPLES, JR., Former Warden, Grimes Unit, ADC, et al., Defendants.
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION INSTRUCTIONS
J. THOMAS RAY, Magistrate Judge.
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 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 United States District Judge, you must, at the same time that you file your written objections, include a "Statement of Necessity" that sets forth the following:
1. Why the record made before the Magistrate Judge is inadequate.
2. Why the evidence to be proffered at the requested hearing before the United States District Judge was not offered at the hearing before the Magistrate Judge.
3. An offer of proof setting forth the details of any testimony or other evidence (including copies of any documents) desired to be introduced at the requested hearing before the United States District Judge.
From this submission, the United States 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 XXXXX-XXXX
Plaintiff, Joshua A. Hilburn, filed this pro se § 1983 action alleging that the named Defendants violated his Eighth Amendment rights by failing to protect him from an assault by other inmates. Doc. 2-1 at 24.
On June 19 and 20, 2014, Defendants filed two separate Motions for Summary
Judgment (Docs. 48, 51) seeking the dismissal of all of Plaintiff's claims. On June 27, 2014 the Court entered an Order (Doc. 55) directing Plaintiff to respond to each of Defendants' Motions for Summary Judgment. Doc. 55 at 1. That Order also directed Plaintiff to file a Statement of Disputed Facts specifying which of the factual assertions in Defendants' Statements of Undisputed Facts (Docs. 49, 52) he disputed and listing any other disputed facts he believed must be resolved at a trial or hearing. Id . at 1-2. Plaintiff was cautioned that his failure to fully comply with the Court's Order would result in either: (1) all facts in Defendants' summary judgment papers being deemed admitted by him, pursuant to Local Rule 56.1(c), or (2) the dismissal of this action, without prejudice, pursuant to Local Rule 5.5(c)(2). Id . at 2-3.
As of the date of this Recommended Disposition, Plaintiff has not submitted a Response to either of Defendants' Motions, or requested an extension of time to do so. Accordingly, the Court recommends that: (1) this case be dismissed, without prejudice, pursuant to Local Rule 5.5(c)(2); and (2) all pending motions be denied as moot.
IT IS THEREFORE RECOMMENDED THAT:
1. Plaintiff's Complaint (Doc. No. 2) be DISMISSED WITHOUT PREJUDICE pursuant to Local Rule 5.5(c)(2).
2. All pending motions be DENIED as moot.
3. The Court CERTIFY, pursuant to 28 U.S.C. § 1915(a)(3), that an in forma pauperis appeal from any Order adopting this Recommended Disposition would not be taken in good faith.