McMullin v. State of Alabama et al (INMATE2)

Filing 15

REPORT AND RECOMMENDATION re 1 Inmate 1983 Complaint filed by Mizell McMullin, that this case be DISMISSED without prejudice for Plaintiff's failures to prosecute this action property and to comply with the orders of this court. Objections to R&R due by 6/3/2009. Signed by Honorable Terry F. Moorer on 5/18/2009. (dmn)

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION ____________________________ MIZELL MCMULLIN, #106 297 P l a in tif f , v. TROY KING, ALABAMA A T T O R N E Y GENERAL, D e f e n d a n t. ____________________________ R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE T h is 42 U.S.C. § 1983 action was filed by Plaintiff on June 26, 2008. On June 30, 2 0 0 8 the court entered an order of procedure which instructed Plaintiff, among other things, to inform the court of any change in his address. (Doc. No. 4, ¶5(h).) The order further i n f o r m e d Plaintiff that his failure to comply with this requirement would result in a R e c o m m e n d a tio n that this case be dismissed. (Id.) It recently came to the court's attention that Plaintiff is no longer residing at the ad d ress he provided to the court when he filed this complaint. Consequently, the court e n te re d an order on May 7, 2009 directing Plaintiff to provide the court with his present a d d re s s on or before May 18, 2009. (Doc. No. 14.) Plaintiff was cautioned that his failure to comply with the court's May 7 order would result in a recommendation that this case be d is m is s e d . (Id.) Plaintiff's copy of the court's May 7 order was returned to the court marked a s undeliverable. As it appears clear that Plaintiff is no longer residing at the most recent * * * * * 2:08-CV-502-TMH (WO)

a d d r e ss he provided to the court and that he has not provided this court with a new address, th e undersigned concludes that dismissal of the complaint at this juncture is appropriate. Accordingly, it is the RECOMMENDATION of the Magistrate Judge that this case b e DISMISSED without prejudice for Plaintiff's failures to prosecute this action properly and to comply with the orders of this court. It is further O R D E R E D that the parties are DIRECTED to file any objections to the R e c o m m e n d a tio n on or before June 3, 2009. Any objections filed must specifically identify th e findings in the Magistrate Judge's Recommendation to which a party objects. Frivolous, co n clus ive or general objections will not be considered by the District Court. The parties are a d v i s 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 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

2

S e p te m b e r 30, 1981. D o n e , this 18 th day of May 2009.

/s /T e r r y F. Moorer TERRY F. MOORER U N IT E D STATES MAGISTRATE JUDGE

3