Banks v. DeLoach et al (INMATE 1)

Filing 6

REPORT AND RECOMMENDATIONS re MOTION to Dismiss filed by Christopher Banks; it is the Recommendation of the Mag Judge that the plaintiff's motion to dismiss be granted and that this case be dismissed without prejudice; Objections to R&R due by 12/15/2008. Signed by Honorable Wallace Capel, Jr on 12/2/08. (vma, )

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 C H R IS T O P H E R BANKS, #238790, Plaintiff, v. ) ) ) ) ) ) ) ) ) )

C IV IL ACTION NO. 2:08-CV-910-TMH [W O ]

J A M E S DELOACH, et al., Defendants

R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE C h ris to p h e r Banks ["Banks"], a state inmate, filed the instant action in which he seeks to have the United States Attorney for the Middle District of Alabama initiate a criminal c o m p la in t against correctional officials for actions undertaken during his confinement at the D ra p e r Correctional Facility. On November 25, 2008, Banks filed a traverse in which he s e e k s dismissal of this case as "the action ... was wrongfully activated." Court Doc. No. 3. T h e court construes this document to contain a motion to dismiss. Upon consideration of the motion to dismiss, the court concludes that this motion is d u e to be granted. Furthermore, since the action has not been served on the defendants, the c o u rt discerns that this case should be dismissed without prejudice. Rule 41(a)(1), Federal R u l e s of Civil Procedure. A c c o rd in g ly, it is the RECOMMENDATION of the Magistrate Judge that the p la in tif f 's motion to dismiss be granted and that this case be dismissed without prejudice.

It is further ORDERED that on or before December 15, 2008 the plaintiff may file objections to t h e Recommendation. 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. 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 2nd day of December, 2008.

/s/ Wallace Capel, Jr. WALLACE CAPEL, JR. UNITED STATES MAGISTRATE JUDGE

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