Brown et al v. Barbour County Sheriff's Department (MAG+)

Filing 8

ORDER and REPORT AND RECOMMENDATIONS of the Mag Judge that plfs' complaint be DISMISSED for the reasons stated; ORDERING that plf's application to proceed in forma pauperis 2 is DENIED due to plfs' failure to comply with the Court's order that each plf complete separate in forma pauperis applications; Objections to R&R due by 3/2/2009. Signed by Honorable Wallace Capel, Jr on 2/17/09. (djy, )

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IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION M A R C U S BROWN, et al., P l a i n t if f s , v. B A R B O U R COUNTY SHERIFF'S DEPARTM ENT, D e f e n d a n t. ) ) ) ) ) ) ) ) ) ) C A S E NO.: 2:08-cv-1018-MHT O R D E R AND RECOMMENDATION OF THE MAGISTRATE JUDGE O n December 24, 2008, Plaintiffs filed a Complaint and Motion to Proceed In Forma P a u p e ris . (Docs. #2 & 3). Plaintiffs' complaint appears to allege violations of their c o n stitu tio n a l rights based upon an alleged search of their residence. On January 7, 2009, th is matter was referred to the undersigned for action or recommendation on all pretrial m a t te rs (Doc. #4). On initial review, the Court observed that Plaintiffs' complaint suffers f ro m fatal defects, namely the failure to state a cause of action against a legal entity subject to suit. Thus, on January 15, 2009, the Court ordered Plaintiffs to amend their complaint by Ja n u a ry 23, 2009. (Doc. #5). The Court also instructed Plaintiffs to provide separately co m p leted applications for in forma pauperis status. Finally, the Court admonished Plaintiffs th a t "failure to comply with this Order will lead the undersigned to recommend to the d istrict judge that the Complaint be dismissed for failure to comply with this Court's O r d e r s and abandonment of claim(s)." Order (Doc. #5) at 2 (emphasis in original). On J a n u a ry 26, 2009, after Plaintiffs failed to respond to the Court's order of January 15, 2009, the Court ordered Plaintiffs to submit their amended complaint by February 2, 2009, or show c a u se why the complaint should not be dismissed for failure to comply with the orders of the C o u rt. (Doc. #6). Plaintiffs have not responded to the Court's orders of January 15, 2009, and January 2 6 , 2009. Dismissal is a permissible sanction for failure to prosecute or obey the orders of th e Court. See Fed. R. Civ. P. 41(b); Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir. 1 9 8 5 ); see also Norman v. Montgomery Bd. Of Educ., 177 Fed. App'x 939, 941 (11th Cir. 2 0 0 6 ) (finding no abuse of discretion in district court's dismissal of plaintiff's suit where pro s e litigant failed to amend deficient complaint as ordered). This power may be exercised by th e Court sua sponte. Lopez v. Aransas County Indep. Sch. Dist., 570 F.2d 541, 544 (5th Cir. 1 9 7 8 ). Likewise, as noted by the Court in its Order of January 15, 2009, this matter is subject to dismissal because Plaintiffs are attempting to sue only the Barbour County Sheriff's D e p a rtm e n t, an entity which, under Alabama law, lacks the capacity to be sued. Dean v. B a r b e r, 951 F.2d 1210, 1215 (11th Cir. 1992). Accordingly, it is the RECOMMENDATION o f the undersigned United States Magistrate Judge that Plaintiffs' complaint be DISMISSED f o r the reasons stated above. It is further O R D E R E D that Plaintiffs' Application to Proceed In Forma Pauperis (Doc. #2) is D E N IE D due to Plaintiffs' failure to comply with the Court's order that each Plaintiff c o m p le te separate in forma pauperis applications. It is further O R D E R E D that Plaintiffs are DIRECTED to file any objections to the said R e c o m m e n d a tio n on or before March 2, 2009. Any objections filed must specifically identify the findings in the Magistrate Judge's Recommendation to which Plaintiff objects. F r iv o lo u s , conclusive, or general objections will not be considered by the District Court. The p a rtie s are advised that 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 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 (5th C ir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982). See also Bonner v. City of P r ic h a r d , 661 F.2d 1206 (11th C ir. 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 S e p te m b e r 30, 1981. D o n e this 17th day of February, 2009. /s/ Wallace Capel, Jr. W A L L A C E CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE

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