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Burns v. Munyan

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

May 15, 2018

MICHAEL BURNS ADC #143150 PLAINTIFF
v.
MONTE MUNYAN, Nurse/LPN, Faulkner County Detention Center; et al. DEFENDANTS

          PROPOSED FINDINGS AND RECOMMENDATIONS INSTRUCTIONS

          JOE J. VOLPE UNITED STATES MAGISTRATE JUDGE.

         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 (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:

Clerk, United States District Court Eastern District of Arkansas 600 West Capitol Avenue, Suite A149 Little Rock, AR 72201-3325

         DISPOSITION

         Michael Burns (“Plaintiff”) brought this action pro se pursuant to 42 U.S.C. § 1983. (Doc. No. 2.) He alleges he was denied access to mental health treatment at the Faulkner County Detention Center.[1] (Id. at 4-8.) Defendants Monte Munyan and Karen Grant have filed a Motion to Dismiss and Brief and Affidavit in Support for Plaintiff's failure to prosecute this cause of action. (Doc. Nos. 16-18.) After careful review, and for the following reasons, I find the Motion to Dismiss should be GRANTED.

         Plaintiff initiated this cause of action on September 15, 2017, by filing his pro se Complaint and an Application to Proceed Without Prepayment of Fees and Affidavit. (Doc. Nos. 1-2.) By Order entered September 19, 2017, Plaintiff's in forma pauperis Application was granted and he was informed of his duty to comply with Local Rule 5.5(c)(2). (Doc. No. 3 at 2-3.) Local Rule 5.5(c)(2) requires a pro se party to “promptly” notify the Clerk and the other parties of any change in his or her address. Local Rule 5.5(c)(2) also warns pro se litigants that failure to comply with this rule may result in dismissal of the cause of action.

         Defendants have provided evidence that Plaintiff has failed to comply with Local Rule 5.5(c)(2). Correspondence mailed by Defendants to Plaintiff at his address of record was returned as undeliverable and indicated Plaintiff had been paroled from the Arkansas Department of Correction (“ADC”). (Doc. Nos. 17 at 1, 18-1 at 1.) Additionally, my search of the ADC's Inmate Population Information Search website reveals Plaintiff is no longer in custody. Since being released, Plaintiff has not updated his address with the Clerk or informed Defendants of his change of address. (Doc. No. 17 at 1.) As Defendants state, Plaintiff's whereabouts are currently unknown. (Id.)

         Pro se litigants are required to follow the same rules of procedure that govern other litigants, including the local court rules. See Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992); Jarzynka v. St. Thomas Univ. of Law, 310 F.Supp.2d 1256, 1264 (S.D. Fla. 2004); see also Brown v. Frey, 806 F.2d 801, 804 (8th Cir. 1986) (“Pro se litigants are not excused from compliance with substantive and procedural law.”). Plaintiff has failed ...


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