Lyons v. Cox

PROPOSED FINDINGS AND RECOMMENDATIONS

JOE J. VOLPE, 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 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

Chandra Lyons ("Plaintiff") is an inmate of the Arkansas Department of Correction ("ADC"). She began this action by filing a Complaint (Doc. No. 1), but she did not file an Application to Proceed without Prepayment of Fees and Affidavit or pay the statutory filing fee. After a review of Plaintiff's litigative history, the Court determined that she was a "three-striker" within the meaning of 28 U.S.C. § 1915(g) (Doc. No. 2).^[1] Accordingly, on December 9, 2014, it denied her Application and directed her to submit the statutory filing fee of $400 within fourteen (14) days. ( Id. ). Plaintiff was warned that failure to submit the filing fee would result in the dismissal of this action without prejudice ( Id. at 2).

In excess of fourteen days have passed since the Court's Order was entered, and Plaintiff has not submitted the filing fee. Accordingly, the Court recommends that this action be dismissed without prejudice.

IT IS THEREFORE RECOMMENDED that:

1. Plaintiff's Complaint (Doc. No. 1) be DISMISSED without prejudice.

2. The Court certify, pursuant to 28 U.S.C. § 1915(a)(3), that an in forma pauperis appeal from any Order adopting these ...