Sellers v. Cross et al (INMATE 2)

Filing 17

RECOMMENDATION OF THE MAGISTRATE JUDGE that this case be DISMISSED without prejudice for plaintiff's failure to comply with the directives of the court's order. Objections to R&R due by 3/2/2010. Signed by Honorable Wallace Capel, Jr on 2/17/2010. (br, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION ________________________________ B R IA N KEITH SELLERS, #220 070 P l a in tif f , v. SGT. MARK CROSS, et al., D e f e n d a n ts . ________________________________ 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 October 29, 2009. On November 2 4 , 2009 the court directed Defendants to file an answer and written report addressing P la in tif f 's claims for relief. In compliance with the court's order, Defendants submitted an a n sw e r and written report on January 4, 2010 which contained relevant evidentiary materials re f u tin g the allegations presented in the instant complaint. The court then issued an order d ire c tin g Plaintiff to file a response to Defendants' answer and written report. (Doc. No. 16.) P lain tiff was advised that his failure to respond to Defendants' answer and written report w o u ld be treated by the court "as an abandonment of the claims set forth in the complaint a n d as a failure to prosecute this action." Id. (emphasis in original). Additionally, P la in t if f was "specifically cautioned that [his failure] to file a response in compliance w ith the directives of this order" would result in the dismissal of this case. Id. The time allotted Plaintiff for the filing of a response expired on January 27, 2010. * * * * * 2:09-CV-999-ID (WO)

A s of the present date, Plaintiff has filed nothing in opposition to Defendants' answer and w ritten report as required by order filed January 6, 2010. 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

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R e c o m m e n d a tio n on or before March 2, 2010. Any objections filed must specifically id e n tify the findings in the Magistrate Judge's Recommendation to which the party is o b je c tin g . Frivolous, conclusive or general objections will not be considered by the District C o u rt. The parties are advised that this Recommendation is not a final order of the court and, th e re f o re , 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 (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 17 th day of February 2010.

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

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