Simmons v. Holmes (Inmate 1)

Filing 4

RECOMMENDATION OF THE MAGISTRATE JUDGE that this case be dismissed without prejudice at this time for failure of the plaintiff to file either a request for leave to proceed in forma pauperis or the requisite $350.00 filing fee. Objections to R&R due by 1/4/2010. Signed by Honorable Charles S. Coody on 12/18/2009. (br, )

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IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION D A L L A S LEVON SIMMONS, #180081, Plaintiff, v. D A V ID HOLMES, Defendant. ) ) ) ) ) ) ) ) ) ) C I V I L ACTION NO. 2:09cv1069-ID [WO] R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE D a lla s Levon Simmons ("Simmons"), a former state inmate, initiated this 42 U.S.C. 1983 action on November 23, 2009. In the instant complaint, Simmons challenges the re p re se n tatio n provided to him by counsel during criminal proceedings before the Circuit C o u rt of Covington County, Alabama in 1994. However, Simmons did not file the $350.00 f ilin g fee nor did he submit an original affidavit in support of a motion for leave to proceed in forma pauperis. The court entered an order requiring that Simmons file the information n e c e s s a r y for a determination of whether he should be allowed to proceed without p r e p a ym e n t of a filing fee or the $350.00 filing fee. Order of November 30, 2009 - Court D o c . No. 2 at 1-2. The court specifically cautioned Simmons that failure to file a response in compliance with the directives of this order would result in a Recommendation "that this c a s e be dismissed." Id. at 2. S im m o n s has failed to file a response to the order entered on November 30, 2009. T h e court therefore concludes that the instant cause of action should be summarily dismissed. C O N C L U SIO N 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 at this time for failure of the plaintiff to file either a request f o r leave to proceed in forma pauperis or the requisite $350.00 filing fee.1 It is further O R D E R E D that on or before January 4, 2010, 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 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 the 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 In dismissing this case, the court makes no determination with respect to the merits of the plaintiff's claims for relief. 1 2 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. D o n e this 18th day of December, 2009. /s/Charles S. Coody CHARLES S. COODY U N IT E D STATES MAGISTRATE JUDGE 3

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