Ngo v. Howard (INMATE 1)

Filing 4

REPORT AND RECOMMENDATIONS re 3 MOTION to Dismiss filed by Elvis Ngo; it is the Recommendation of the Mag Judge that the plaintiff's motion to dismiss be granted without prejudice; Objections to R&R due by 10/8/2008. Signed by Honorable Susan Russ Walker on 9/25/08. (vma, )

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IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION ELVIS NGO, Reg. No. 07562-043, Plaintiff, v. LARRY HOWARD, Defendant. ) ) ) ) ) ) ) ) ) ) CIVIL ACTION NO. 2:08-CV-649-TMH [WO] RECOMMENDATION OF THE MAGISTRATE JUDGE Elvis Ngo, a federal inmate incarcerated at the Maxwell Federal Prison Camp, filed the instant civil action challenging the conditions of his work assignment. Subsequently, and prior to service of the complaint, Ngo filed a motion for voluntary dismissal (Court Doc. No. 3). Upon consideration of the plaintiff's motion to dismiss, the court concludes that this motion is due to be granted. Furthermore, since the complaint has not been served on the defendant, the court discerns that this case should be dismissed without prejudice. Rule 41(a)(1), Federal Rules of Civil Procedure. Accordingly, it is the RECOMMENDATION of the Magistrate Judge that the plaintiff's motion to dismiss be granted and that this case be dismissed without prejudice. It is further ORDERED that on or before October 8, 2008 the plaintiff may file objections to the Recommendation. Any objections filed must specifically identify the findings in the Magistrate Judge's Recommendation to which the party is objecting. Frivolous, conclusive or general objections will not be considered 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. Failure to file written objections to the proposed findings and advisements in the Magistrate Judge's Recommendation shall bar the party from a de novo determination by the District Court of issues covered in the Recommendation and shall bar the party from attacking on appeal factual findings in the Recommendation accepted or adopted by the District Court except upon grounds of plain error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981, en banc), adopting as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981. DONE, this 25th day of September, 2008. /s/ Susan Russ Walker SUSAN RUSS WALKER CHIEF UNITED STATES MAGISTRATE JUDGE 2

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