Clayton v. Burton et al (INMATE2)

Filing 8

REPORT AND RECOMMENDATIONS that this case be DISMISSED without prejudice for Plaintiff's failures to comply with the orders of the court and to prosecute this action; Objections to R&R due by 8/12/2009. Signed by Honorable Wallace Capel, Jr on 7/31/2009. (cc, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION ____________________________ W IL L IE JAMES CLAYTON, #109 393 * Plaintiff, v. C A P T A IN BURTON, et al., D e f e n d a n ts . ____________________________ * * * * 2:09-CV-563-ID (WO)

RECOMMENDATION OF THE MAGISTRATE JUDGE P la in tif f filed this 42 U.S.C. § 1983 action on June 15, 2009. On June 19, 2009 the c o u rt, in accordance with the provisions contained in 28 U.S.C. § 1915(a)(2), directed P la in tif f to submit an account statement reflecting the average monthly balances and average m o n th ly deposits to his inmate account for the six month period immediately preceding the f ilin g of his complaint. (See Doc. No. 3.) On June 24, 2009 Plaintiff submitted an inmate account statement. (Doc. No. 4.) U p o n review of this statement, the court deemed it necessary to direct Plaintiff to submit an in m a te account statement which reflected the requisite account information for the six month p e rio d immediately preceding the filing of this action. (Doc. No. 5.) Plaintiff submitted a n o th e r inmate account statement on July 1, 2009. (Doc. No. 6.) This statement, however, w a s identical to the one submitted by Plaintiff on June 24, 2009.1 Consequently, on July 8,

The account information provided by Plaintiff reflects the financial activity in his inmate account only as of January 1, 2009. (See Doc. Nos. 4, 6.)

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2 0 0 9 the court granted Plaintiff fifteen days to show cause why his complaint should not be d ism issed for his failure to submit a current prison account statement from the account clerk a t the Frank Lee Work Release Center as directed by order filed June 26, 2009. (Doc. No. 7 .) Plaintiff was cautioned that his failure to comply with the July 8 order would result in a Recommendation that his complaint be dismissed. (Id.) The requisite time has passed and P la in tif f has not complied with the orders of the court. Consequently, the court concludes th a t dismissal of this case is appropriate for Plaintiff's failures to comply with the orders of th e court and to prosecute this action. 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 Plaintiff's failures to comply with the orders of the c o u rt and to prosecute this action. It is further O R D E R E D that on or before August 12, 2009 the parties are DIRECTED to file any o b je c tio n s to the Recommendation Any objections filed must specifically identify the f in d in g s 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 2

findings 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 31 st day of July 2009.

/s/ Wallace Capel, Jr. WALLACE CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE