McWhorter v. Knight (INMATE1)

Filing 12

RECOMMENDATION of the Magistrate Judge that this case be dismissed without prejudice. Objections to R&R due by 12/23/2008. Signed by Honorable Terry F. Moorer on 12/10/08. (sl, )

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION J E R E M Y CHRISTOPHER McWHORTER, ) ) Plaintiff, ) ) v. ) C IV IL ACTION NO. 2:08-CV-791-WKW ) [WO] ) F . KNIGHT, ) ) Defendant. ) R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE T h is cause of action is pending before the court on a 42 U.S.C. § 1983 complaint filed b y Jeremy Christopher McWhorter ["McWhorter"], a federal inmate currently confined in th e Autauga County Jail, on September 25, 2008. Pursuant to the orders of this court, the d e f en d a n t filed a written report supported by relevant evidentiary materials in which he ad d resse d the claims for relief presented by McWhorter. The report and evidentiary

m a te ria ls refute the allegations presented in the instant cause of action. The court thereafter is s u e d an order directing McWhorter to file a response to the written report. Order of N o v e m b e r 12, 2008 - Court Doc. No. 10. The order advised McWhorter that his failure to re sp o n d to the defendant's 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. at 1 (emphasis in original). Additionally, the order "specifically cautioned [the plaintiff] that [h is failure] to file a response in compliance with the directives of this order" would re s u lt in the dismissal of this civil action. Id. The time allotted McWhorter for filing a

re sp o n s e in compliance with this order expired on December 2, 2008. As of the present date, M c W h o rte r has failed to file the requisite response in opposition to the defendant's written re p o rt. In light of the foregoing, the court concludes that this case should be dismissed. The court has reviewed the file in this case to determine whether a less drastic m e a s u r e than dismissal is appropriate. After such review, it is clear that dismissal of this c a se without prejudice is the proper course of action. McWhorter is an indigent inmate. T h u s , the imposition of monetary or other punitive sanctions against him would be in e f f e c tu a l. Additionally, McWhorter has exhibited a lack of deference for this court and its au tho rity as he has failed to comply with the directives of the orders entered in this case. It is therefore apparent that any additional effort by this court to secure McWhorter's co m p lian ce would be unavailing. Consequently, the court concludes that the plaintiff's ab an d o n m en t of his claims, his failure to comply with the orders of this court and his failure to properly continue prosecution of this cause of action warrant dismissal of this case. CONCLUSION F o r the foregoing reasons, it is the RECOMMENDATION of the Magistrate Judge that this case be dismissed without prejudice. It is further ORDERED that on or before December 23, 2008 the parties may file objections to the R e c o m m e n d a tio n . Any objections filed must specifically identify the findings in the M a g is tra te Judge's Recommendation to which the party is objecting. Frivolous, conclusive o r general objections will not be considered by the District Court. The parties are advised th a t this Recommendation is not a final order of the court and, therefore, it is not appealable. 2

F a ilu re to file written objections to the proposed findings and advisements in the M a g is tra te Judge's Recommendation shall bar the party from a de novo determination by the D is tric t Court of issues covered in the Recommendation and shall bar the party from a tta c k in g on appeal factual findings in the Recommendation accepted or adopted by the D is tric t Court except upon grounds of plain error or manifest injustice. Nettles v.

W a in w r ig h t, 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 3 3 (11th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981, en b a n c ), adopting as binding precedent all of the decisions of the former Fifth Circuit handed d o w n prior to the close of business on September 30, 1981. D o n e this 10th day of December, 2008.

/s /T e r r y F. Moorer TERRY F. MOORER UNITED STATES MAGISTRATE JUDGE

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