Pouncey v. Dothan City Police Dept. et al (INMATE 2)

Filing 24

REPORT AND RECOMMENDATION that the 18 Amended Complaint filed by Terrence Pouncey be DISMISSED without prejudice for Plaintiff's failures to prosecute this case and to comply with the order of this court that he provide a service address for Defendants Nelson and Peters, the only defendants remaining in this case, and the resulting failure to perfect service on these individuals. Objections to R&R due by 1/5/2009. Signed by Honorable Wallace Capel, Jr. on 12/19/2008. (dmn)

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA S O U T H E R N DIVISION ____________________________ T E R R E N C E POUNCEY P l a in tif f , v. O F F IC E R NELSON, et al., D e f e n d a n ts . ____________________________ * * * * * 1:08-CV-652-TMH (WO)

R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE P lain tiff filed this action on August 12, 2008. On November 17, 2008 the court d ire c te d the Clerk to serve a copy of the second amended complaint on Defendants Nelson a n d Peters.1 O n November 17, 2008 the envelope containing Defendants Nelson's and Peters' copy o f the second amended complaint was returned to the court marked as undeliverable. C o n s e q u e n tly, on November 18, 2008 the court entered an order which notified Plaintiff that s e rv ic e of process had not been obtained on Defendants Nelson and Peters. (See Doc. No.

On August 14, 2008 the court directed Plaintiff to file an amended complaint. The order advised Plaintiff that the amended complaint would supercede the original complaint. (See Doc. No. 3.) Upon review of Plaintiff's amended complaint filed on October 10, 2008 the court deemed it necessary to direct Plaintiff to submit a second amended complaint which would supercede the original and first amended complaint. (See Doc. No. 15.) Plaintiff filed his seconded amended complaint on November 6, 2008. (See Doc. No. 18.) The court directed the Clerk to serve the November 6, 2008 amended complaint on Defendants Peters and Nelson. (See Doc. No. 19.)

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2 2 .) This order advised Plaintiff that if a person had not been served, he/she was not a party to this lawsuit except in very unusual circumstances. Plaintiff was, therefore, directed to f u r n i s h the Clerk's Office with a correct address for Defendants Nelson and Peters. The a b o v e -re f ere n c ed order further advised Plaintiff that the court would not continue to monitor th is case to ensure that the defendants Plaintiff wished to sue had been served. Plaintiff was in f o rm e d that this was his responsibility. The order also informed Plaintiff that if he failed to comply with the court's directives, Defendants Nelson and Peters would not be served, th e y would not be considered parties to this action, and this case would proceed only against th o s e defendants, if any remained, on whom service was perfected. Plaintiff has filed no response to the court's November 18, 2008 order directing that h e provide service addresses for Defendants Nelson and Peters on or before December 2, 2 0 0 8 . The court, therefore, finds that service of the complaint has not been perfected on D e f e n d a n ts Nelson and Peters and no exceptional circumstances exist which warrant their in c lu s io n as defendants in this case. Further, because Defendants Nelson and Peters are the o n ly remaining defendants to this cause of action, the court concludes that dismissal of this a c tio n is appropriate. In light of the foregoing, the court concludes that Defendants Nelson a n d Peters are due to be dismissed as a parties to this complaint and the complaint is due to b e dismissed without prejudice. See Rule 4(m), Federal Rules of Civil Procedure. A c c o rd in g ly, it is the RECOMMENDATION of the Magistrate Judge that the instant

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c o m p la in t be DISMISSED without prejudice for Plaintiff's failures to prosecute this case and to comply with the order of this court that he provide a service address for Defendants N e lso n and Peters, the only defendants remaining in this case, and the resulting failure to p e rf e c t service on these individuals. It is further O R D E R E D that the parties are DIRECTED to file any objections to the said R e c o m m e n d a tio n on or before January 5, 2009. Any objections filed must specifically i d e n t if y the findings in the Magistrate Judge's Recommendation to which a party object. F r iv o lo u s , conclusive or general objections will not be considered by the District Court. The p a rtie s are advised that this Recommendation is not a final order of the court and, therefore, it is not appealable. F a ilu re to file written objections to the proposed findings and recommendations in the M a g is tra te Judge's report shall bar the party from a de novo determination by the District C o u rt of issues covered in the report and shall bar the party from attacking on appeal factual f in d in g s in the report accepted or adopted by the District Court except upon grounds of plain e rr o r or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5 th Cir. 1982). See Stein v . Reynolds Securities, Inc., 667 F.2d 33 (11 th Cir. 1982). See also Bonner v. City of P r ic h a r d , 661 F.2d 1206 (11 th Cir. 1981) (en banc), adopting as binding precedent all of the d e c is io n s of the former Fifth Circuit handed down prior to the close of business on

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S e p te m b e r 30, 1981. D o n e , this 19 th day of December 2008.

/s/ Wallace Capel, Jr. WALLACE CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE

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