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White v. Arkansas County Jail

United States District Court, Eastern District of Arkansas, Pine Bluff Division

December 8, 2014

TYLER WHITE, PLAINTIFF
v.
ARKANSAS COUNTY JAIL et al., DEFENDANTS

PROPOSED FINDINGS AND RECOMMENDATIONS

INSTRUCTIONS

The following recommended disposition has been sent to United States District Judge D.P. Marshall Jr. 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 Tyler White, who is currently held at the Arkansas County Detention Center, filed a pro se complaint on October 22, 2014. Plaintiff did not pay the $400.00 filing and administrative fees, and, on October 27, 2014, the Court entered an order denying his in forma pauperis application as incomplete (docket entry #3). That same order directed Plaintiff to pay the filing fees or file a fully completed application for leave to proceed in forma pauperis, and to file an amended complaint, and warned him that his failure to do so within 30 days would result in the recommended dismissal of his complaint.

More than 30 days have passed, and Plaintiff has not paid the filing and administrative fees, filed an application for leave to proceed in forma pauperis, filed an amended complaint, or otherwise responded to the order. Under these circumstances, Plaintiff’s complaint should be dismissed for failure to pay the filing fee, 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 fee, 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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