Henley v. McGriff et al (INMATE2)

Filing 2

ORDER AND REPORT AND RECOMMENDATIONS re 1 Inmate 1983 Complaint filed by Richard Henley; it is Ordered that Document Number 1 filed in the instant action is considered an amended complaint which Plaintiff intended to file in Civil Action No. 2:08cv 1004-WKW, Henley v. Ala. Bd. of Pardons and Paroles, et al; Based on the foregoing, it is the Recommendation of the Mag Judge that the instant complaint be dismissed without prejudice; The Clerk is directed to make a copy of the complaint filed in th e instant action, file the copy of said pleading in Civil Action No. 2:08cv1004-WKW, and docket said pleading as an amendment in that case; The Clerk is further directed to file a copy of this order in Civil Action No. 2:08cv1004-WKW Objections to R&R due by 2/9/2009. Signed by Honorable Wallace Capel, Jr on 1/26/09. (vma, )

. IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION _____________________________ R IC H A R D HENLEY, #123 127, P l a in tif f , v. S E V E N MCGRIFF, et al., D e f e n d a n ts . _____________________________ * * * * * 2:09-CV-55-WHA (WO)

O R D E R AND RECOMMENDATION OF THE MAGISTRATE JUDGE T h e above-captioned action was filed on January 22, 2009. Plaintiff challenges m atters associated with the parole consideration process. After reviewing Plaintiff's

c o m p la in t, the undersigned is persuaded that Plaintiff is actually attempting to amend a c o m p la in t he previously filed with the court on December 19, 2008 as he was directed to do b y order entered January 9, 2009. See Henley v. Ala. Bd. of Pardons and Paroles, et al., C iv il Action No. 2:08-CV-1004-WKW (Doc. No. 6). The subject matter of the instant action is identical to the subject matter in Civil Action No. 2:08-CV-1008-WKW. In light of the foregoing, the court finds it appropriate to recommend that the instant c o m p la in t be dismissed. The court will also direct the Clerk to docket Plaintiff's January 22, 2 0 0 9 complaint as an amended complaint in Civil Action No. 2:08-CV-1004-WKW. A c c o r d in g ly, it is

O R D E R E D that Document Number 1 filed in the instant action is CONSIDERED a n amended complaint which Plaintiff intended to file in Civil Action No. 2:08-CV-1004W K W , Henley v. Ala. Bd. of Pardons and Paroles, et al. B a se d on the foregoing, it is the RECOMMENDATION of the Magistrate Judge that th e instant complaint be DISMISSED without prejudice. The Clerk is DIRECTED to make a copy of the complaint filed in the instant action, f ile the copy of said pleading in Civil Action No. 2:08-CV-1004-WKW, and docket said p lea d in g as an amendment in that case. The Clerk is further DIRECTED to file a copy of this o rd e r in Civil Action No. 2:08-CV-1004-WKW. It is further O R D E R E D that the parties are DIRECTED to file any objections to the R e c o m m e n d a tio n on or before February 9, 2009. Any objections filed must specifically id e n tif y the findings in the Magistrate Judge's Recommendation to which a party 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

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e r r 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 26 r d day of January 2009.

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

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