Johnson v. Brownfield (INMATE1)

Filing 10

REPORT AND RECOMMENDATIONS of the Magistrate Judge that this case be dismissed without prejudice for failure of the plaintiff to comply with the orders of this court and his failure to properly prosecute this action. Objections to R&R due by 9/2/2009. Signed by Honorable Terry F. Moorer on 8/17/2009. (cb, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION ALVIN JAMES JOHNSON, Plaintiff, v. OFFICER BROWNFIELD, Defendant. ) ) ) ) ) ) ) ) )

CIVIL ACTION NO. 2:09-CV-526-TMH

R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE A lv in James Johnson ["Johnson"], an indigent inmate, sought to initiate this 42 U.S.C. § 1983 action challenging actions taken against him during his confinement at the M o n tg o m e ry County Detention Facility. However, the plaintiff failed to submit either the re q u is ite filing fee or an application for leave to proceed in forma pauperis upon his original su b m iss io n of the civil action to this court. Accordingly, the court returned the complaint to J o h n s o n and required that on or before June 29, 2009 he "file the complaint accompanied by e ith e r the appropriate affidavit in support of [a] motion for leave to proceed in forma p a u p e r i s ... OR the $350 filing fee." Order of June 9, 2009 - Court Doc. No. 3 at 1-2. In re sp o n s e to this order, the plaintiff filed an application to proceed without prepayment of fees a n d costs on June 15, 2009 (Court Doc. No. 4). He did not, however, file the complaint as o rd e re d by the court. Moreover, the application to proceed without prepayment of fees, an a p p lic a tio n made by Johnson under penalty of perjury, contained inaccurate information re g a rd in g income received by the plaintiff. This inaccuracy necessitated an amendment to th e application explaining the discrepancy in Johnson's sworn application and the inmate

a c c o u n t information filed in support of the application. Order of June 18, 2009 - Court Doc. N o . 5. Johnson filed the requisite amendment to his application on June 30, 2009 (Court D o c . No. 8) but did not file the complaint as ordered by the court. In light of the foregoing, the court entered an order that on or before July 16, 2009 J o h n s o n "(i) show cause why he has failed to file the complaint with this court in compliance w ith the directives of the order entered on June 9, 2009 (Court Doc. No. 3) ('[T]he plaintiff sh a ll file the complaint accompanied by either the appropriate affidavit in support of his m o tio n for leave to proceed in forma pauperis ... OR the $350 filing fee.'); and (ii) file the c o m p l a in t as ordered by the court." Order of July 2, 2009 - Court Doc. No. 9. The order f u rth e r "cautioned [Johnson] that if he fails to file a response to this order the undersigned w ill recommend that this case be dismissed." Id. As of the present date, Johnson has filed n o th in g in response to this order. The court therefore concludes that this case should be d is m is s e d . A c c o r d in g ly, it is the RECOMMENDATION of the Magistrate Judge that this case b e dismissed without prejudice for failure of the plaintiff to comply with the orders of this c o u rt and his failure to properly prosecute this action. It is further O R D E R E D that on or before September 2, 2009 the parties may file objections to the R e c o m m e n d a ti o n . Any objection must specifically identify the findings in the

R e c o m m e n d a tio n objected to. Frivolous, conclusive or general objections will not be c o n sid e re d by the District Court. The parties are advised that this Recommendation is not

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a final order of the court and, therefore, it is not appealable. F a ilu re to file written objections to the proposed findings in the Recommendation sh a ll bar the party from a de novo determination by the District Court of issues covered in th e report and shall bar the party from attacking on appeal factual findings in the report a c c e p te d or adopted by the District Court except upon grounds of plain error or manifest in ju s tic e . Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds S e c u ritie s, Inc., 667 F.2d 33 (11 th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1 2 0 6 (11 th Cir. 1981, en banc), adopting as binding precedent all decisions of the former Fifth C irc u it issued prior to September 30, 1981. Done this 17th day of August, 2009.

/s/Terry F. Moorer TERRY F. MOORER UNITED STATES MAGISTRATE JUDGE

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