Russell v. Shelley et al (INMATE1)

Filing 7

REPORT AND RECOMMENDATION of the Magistrate Judge that this case be dismissed without prejudice for failure of the plf to file an amended complaint in accordance with the directive of the orders entered in this case; Objections to R&R due by 1/28/2010. Signed by Honorable Wallace Capel, Jr on 1/13/2010. (wcl, )

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA S O U T H E R N DIVISION C O R N E L IU S KENTA RUSSELL, Plaintiff, v. ) ) ) ) ) ) ) ) ) )

C IV IL ACTION NO. 1:09-CV-978-TMH [WO]

M IK E SHELLEY, et al., Defendants.

RECOM M ENDATION OF THE MAGISTRATE JUDGE
O n October 20, 2009, Cornelius Kenta Russell ["Russell"], a county inmate, filed this 4 2 U.S.C. § 1983 action regarding an alleged physical altercation with jail personnel on A u g u st 17, 2009. Upon review of the complaint, the court deemed it necessary that Russell file an amended complaint and therefore entered an order requiring that he undertake such a c tio n on or before November 9, 2009. Order of October 22, 2009 - Court Doc. No. 4. The c o u rt specifically cautioned Russell that his "fail[ure] to comply with the directives of this o r d e r " would result in entry of a Recommendation "that this case be dismissed." Id. at 2. On December 15, 2009, Russell submitted documents to the court in response to the a f o re m e n tio n e d order. However, these documents were "incoherent, rambling and

u n in te llig ib le " prompting the court to order that they be stricken from the docket and returned to the plaintiff. Order of December 15, 2009 - Court Doc. No. 6 at 1. The court further o rd e re d the plaintiff to file a proper amended complaint on or before January 4, 2010. Id.

T h e plaintiff was again "cautioned that if he fails to comply with the directives of this order th e undersigned will recommend that this case be dismissed." Id. at 2. As of the present d a te, Russell has failed to file an amended complaint in compliance with the orders of this c o u rt. The court therefore concludes that this case should be dismissed. A c c o r d in g ly, it is the RECOMMENDATION of the Magistrate Judge that this case b e dismissed without prejudice for failure of the plaintiff to file an amended complaint in a c c o r d a n c e with the directive of the orders entered in this case. It is further O R D E R E D that on or January 28, 2010 the parties may file objections to the R e c o m m e n d a t io n . Any objection must specifically identify the findings in the

R e c o m m e n d a tio n objected to. Frivolous, conclusive or general objections will not be c o n sid e re d by the District Court. The parties 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 in the Recommendation sh a ll bar the party from a de novo determination by the District Court of issues covered in the report and shall bar the party from attacking on appeal factual findings in the report a c c e p te d or adopted by the District Court except upon grounds of plain error or manifest i n j u s t ic e . Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds S e c u ritie s, Inc., 667 F.2d 33 (11 th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1 2 0 6 (11 th Cir. 1981, en banc), adopting as binding precedent all decisions of the former Fifth 2

C irc u it issued prior to September 30, 1981. D O N E this 13th day of January, 2010.

/ s / Wallace Capel, Jr. W A L L A C E CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE

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