Searcy v. Owens (INMATE2)

Filing 13

REPORT AND RECOMMENDATIONS that this case be DISMISSED without prejudice; Objections to R&R due by 1/2/2006. Signed by Judge Vanzetta P. McPherson on 12/16/05. (djy, )

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Searcy v. Owens (INMATE2) Doc. 13 Case 2:05-cv-00861-WKW-VPM Document 13 Filed 12/16/2005 Page 1 of 3 IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION ________________________________ J E S S IE SEARCY P l a i n t if f , v. R I C K Y OWENS, D e fe n d a n t. ________________________________ * * * CIVIL ACTION NO. 2:05-CV-861-T * * R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE P la in tiff, an inmate incarcerated at the Coosa County Jail, filed this complaint on S e p te m b e r 8, 2005. On September 13, 2005 the court directed Defendants to file an answer an d written report addressing Plaintiff's claims for relief. In compliance with the court's o r d e r, Defendants submitted an answer and written report on November 14, 2005 which c o n ta in e d relevant evidentiary materials refuting the allegations presented in the instant c o m p l a in t and indicated that Plaintiff failed to exhaust available administrative remedies. T h e court then issued an order directing Plaintiff to file a response to Defendants' answer and w ritten report. (Doc. No. 10.) Plaintiff was advised that his failure to respond to D e fe n d a n ts' answer and written report would be treated by the court "as an abandonment o f the claims set forth in the complaint and as a failure to prosecute this action." Id. ( e m p h a s is in original). Additionally, Plaintiff was "specifically cautioned that [his failure] to file a response in compliance with the directives of this order" would result in the Case 2:05-cv-00861-WKW-VPM Document 13 Filed 12/16/2005 Page 2 of 3 d is m is s a l of this case. Id. The time allotted Plaintiff for the filing of a response expired on D e c e m b e r 5, 2005. As of the present date, Plaintiff has filed nothing in opposition to D e f e n d a n ts ' answer and written report as required by order filed November 15, 2005. In lig h t of the foregoing, the court concludes that this case should be dismissed. The court has reviewed the file in this case to determine whether less drastic sanctions th a n dismissal are appropriate. After such review, it is clear that dismissal of this case is the p ro p e r sanction. Plaintiff is an indigent state inmate. Thus, the imposition of monetary or o th e r punitive sanctions against him would be ineffectual. Additionally, Plaintiff has e x h ib ite d a lack of respect for this court and its authority as he has failed to comply with the d ire c tiv e s of the orders entered in this case. It is, therefore, apparent that any additional e ffo rt by this court to secure Plaintiff's compliance would be unavailing. Consequently, the c o u rt concludes that Plaintiff's abandonment of his claims, his failure to comply with the o rd e r s of this court, and his failure to properly prosecute this cause of action warrant d is m is s a l of this case. For the foregoing reasons, it is the RECOMMENDATION of the Magistrate Judge th a t this case be DISMISSED without prejudice. 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 2 January 2006. Any objections filed must specifically id e n tif y the findings in the Magistrate Judge's Recommendation objected to. Frivolous, co n clus ive or general objections will not be considered by the District Court. The parties are 2 Case 2:05-cv-00861-WKW-VPM Document 13 Filed 12/16/2005 Page 3 of 3 a d v is e d that this Recommendation is not a final order of the court and, therefore, it is not a p p e a la b le . 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 fin 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 S e p te m b e r 30, 1981. D o n e , this 16 th day of December 2005. /s / Vanzetta Penn McPherson V A N Z E T T A PENN MCPHERSON UNITED STATES MAGISTRATE JUDGE 3

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