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Acklin v. Hobbs

United States District Court, E.D. Arkansas, Pine Bluff Division

October 22, 2014

MARVIN A. ACKLIN, ADC #087448, Plaintiff,
v.
RAY HOBBS, et al., Defendants.

PROPOSED FINDINGS AND RECOMMENDATIONS INSTRUCTIONS

JEROME T. KEARNEY, Magistrate Judge.

The following recommended disposition has been sent to 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 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

This matter is before the Court on Defendants' Motions to Compel and to Dismiss, based on Plaintiff's failure to respond to their discovery requests (Doc. Nos. 24, 26).

This Court directed Plaintiff to respond to the Motions on September 19, 2014, and notified him that failure to respond could result in the dismissal without prejudice of this lawsuit, for failure to prosecute (Doc. No. 28). As of this date, Plaintiff has not responded to the Motions, and a copy of the Order sent to him at his last-known address was returned to the Court as undeliverable on September 24, 2014 (Doc. No. 31).

Rule LR5.5(c)(2) of the Rules of the United States District Courts for the Eastern and Western Districts of Arkansas provides as follows:

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.... 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....

In addition, FED.R.CIV.P. 37(b)(2)(A)(v) and 37(d)(3) provide that if a party fails to obey an order to provide or permit discovery, or fails to serve answers to interrogatories, the Court may sanction the party by dismissing the action. In this case, in light of Plaintiff's failure to respond or object to Defendants' discovery requests and their Motion to Dismiss, or to comply with this Court's September 24, 2014 Order directing responses to the Motions, the Court finds that Plaintiff's Complaint should be dismissed without prejudice. Accordingly,

IT IS, THEREFORE, RECOMMENDED that Defendants' Motions to Compel and to Dismiss (Doc. Nos. 24, 26) be GRANTED, and Plaintiff's Complaint be DISMISSED without prejudice.

IT IS SO RECOMMENDED.


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