Smith v. Hamilton et al (INMATE2)

Filing 28

REPORT AND RECOMMENDATION re 1 Inmate 1983 Complaint and 5 Amendment to Complaint that this case be DISMISSED without prejudice. Objections to R&R due by 2/26/2009. Signed by Honorable Terry F. Moorer on 2/11/2009. (dmn)

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION ________________________________ A N D R E A S J. SMITH P l a in tif f , v. * * * 2:08-CV-642-WHA (WO)

JOHN C. HAMILTON (AKA J.C.), * e t al., D e f e n d a n ts . * ________________________________ R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE P la in tif f , a prison inmate, filed this complaint on August 7, 2008. On August 18, 2008 th e court directed Defendants to file an answer and written report addressing Plaintiff's c la im s for relief. In compliance with the court's order, Defendants submitted answers and w r itte n reports (Doc. Nos. 22, 26) which contained relevant evidentiary materials refuting the a l le g a tio n s presented in the instant complaint. The court then issued an order directing P la in tif f to file a response to Defendants' answers and written reports. (Doc. No. 27.) P lain tiff was advised that his failure to respond to Defendants' answers and written reports w o u ld be treated by the court "as an abandonment of the claims set forth in the complaint a n d as a failure to prosecute this action." Id. (emphasis in original). Additionally, P la in t if f was "specifically cautioned that [his failure] to file a response in compliance w ith the directives of this order" would result in the dismissal of this case. (Id.) The time allotted Plaintiff for the filing of a response expired on January 26, 2009.

A s of the present date, Plaintiff has filed nothing in opposition to Defendants' answers and w ritten reports as required by order filed January 5, 2009. In light of the foregoing, the court c o n c lu d e s that this case should be dismissed. The court has reviewed the file in this case to determine whether less drastic sa n c tio n s than dismissal are appropriate. After such review, it is clear that dismissal of this c a se is the proper sanction. Plaintiff is an indigent state inmate. Thus, the imposition of m o n e ta ry or other punitive sanctions against him would be ineffectual. Additionally, P l a i n tif f has exhibited a lack of respect for this court and its authority as he has failed to c o m p ly with the directives of the orders entered in this case. It is, therefore, apparent that a n y additional effort by this court to secure Plaintiff's compliance would be unavailing. Consequently, the court concludes that Plaintiff's abandonment of his claims, his failure to c o m p ly with the orders of this court, and his failure to properly prosecute this cause of action w a rr a n t dismissal of this case. See Link v. Wabash R.R., 370 U.S. 626, 630 (1962)

( in t e rp r e tin g Rule 41(b) not to restrict the court's inherent authority to dismiss sua sponte an a c tio n for lack of prosecution); World Thrust Films, Inc., v. International Family E n te rta in m e n t, Inc., 41 F.3d 1454, 1456-57 (11 th Cir. 1995). F o r 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

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R ec o m m en d atio n on or before February 26, 2009. Any objections filed must specifically id e n tify the findings in the Magistrate Judge's Recommendation to which the party is o b je c tin g . Frivolous, conclusive or general objections will not be considered by the District C o u rt. The parties are advised that this Recommendation is not a final order of the court and, th e re f o re , 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 S e p te m b e r 30, 1981. D o n e , this 11 th day of February 2009.

/s/Terry F. Moorer TERRY F. MOORER UNITED STATES MAGISTRATE JUDGE

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