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Nixon v. Rivera

United States District Court, E.D. Arkansas, Helena Division

October 6, 2014

GARY E. NIXON, REG. #XXXXX-XXX, Plaintiff,
v.
RIVERA, et al., Defendants.

PROPOSED FINDINGS AND RECOMMENDATIONS

H. DAVID YOUNG, Magistrate Judge.

INSTRUCTIONS

The following recommended disposition has been sent to Chief 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 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:

DISPOSITION

Plaintiff Gary E. Nixon filed a pro se complaint on July 17, 2014. Plaintiff did not pay the $400.00 filing and administrative fees or file an application for leave to proceed in forma pauperis ("IFP"). On July 31, 2014, the Court entered an order directing Plaintiff to either pay the filing and administrative fees or to file an IFP application within 30 days (docket entry #5). That order also warned Plaintiff that his failure to do so would result in the recommended dismissal of his complaint. On August 27, 2014, Plaintiff was granted an additional 30 days to comply (docket entry #8).

More than 30 days have passed since the Court's last order and Plaintiff has not paid the filing and administrative fees, filed a complete application for leave to proceed IFP, or otherwise responded to the order. Under these circumstances, the Court concludes that Plaintiff's complaint should be dismissed for failure to pay the filing and administrative fees, failure to comply with Local Rule 5.5(c)(2), and for failure to 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 pay the filing and administrative fees, failure to comply with Local Rule 5.5(c)(2), and for failure to respond to the Court's order.

2. 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.


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