Johnson v. The Alabama Board of Pardon and Paroles et al (INMATE 2)
REPORT AND RECOMMENDATION re 1 Inmate 1983 Complaint filed by Larry Johnson, that this case be DISMISSED without prejudice. Objections to R&R due by 6/22/2009. Signed by Honorable Wallace Capel, Jr. on 6/9/2009. (dmn)
IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION ____________________________ L A R R Y JOHNSON, #115 808, P l a in tif f , v. S T E V E MCGILL, et al., D e f e n d a n ts . ____________________________ * * * * * 2:09-CV-11-TMH (WO)
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 January 5, 2009. On February 23, 2 0 0 9 the 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 an answer and w ritte n report on April 30, 2009 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' answer and written report. (Doc. No. 24.) Plaintiff w a s advised that his failure to respond to Defendants' answer and written report would be tre a ted by the court "as an abandonment of the claims set forth in the complaint and as a failure to prosecute this action." (Id.) (emphasis in original). Additionally, Plaintiff was " s p e c ific a lly cautioned that [his failure] to file a response in compliance with the d ir e ctiv e s of this order" would result in the dismissal of this case. (Id.) The time allotted Plaintiff for the filing of a response expired on May 22, 2009. As
o f the present date, Plaintiff has filed nothing in opposition to Defendants' answer and w ritten report as required by order filed May 1, 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
R ec o m m en d atio n on or before June 22, 2009. Any objections filed must specifically identify th e findings in the Magistrate Judge's Recommendation to which a party objects. Frivolous, co n clus ive or general objections will not be considered by the District Court. The parties are a d v is e d that this Recommendation is not a final order of the court and, therefore, it is not a p p e a la b le . 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 9 th day of June 2009.
/s Wallace Capel, Jr. WALLACE CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?