Lemieux v. Keller (INMATE 3)

Filing 3

WITHDRAWN pursuant to 5 Order: RECOMMENDATION OF THE MAGISTRATE JUDGE that this case be DISMISSED without prejudice for Petitioner's failure to comply with the order of this court. Objections to R&R due by 3/3/2010. Signed by Honorable Wallace Capel, Jr on 2/18/2010. (br, ) Modified on 2/24/2010 (br, ).

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 V ID M. LEMIEUX, P e titio n e r, v J.A. KELLER, R e sp o n d e n t. ) ) ) ) ) ) ) ) )

Civil Action No.2:10cv40-TMH (WO)

R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE O n January 19, 2010 (Doc. No. 2), this court entered an order that directed Petitioner to either submit the $5.00 filing fee on or before February 9, 2010, or file by that same date th e appropriate affidavit in support of a motion for leave to proceed in forma pauperis in this a c tio n for habeas corpus relief under 28 U.S.C. § 2241. Petitioner was specifically cautioned th a t his failure to comply with the court's January 19 order would result in a recommendation th a t his case be dismissed. (See Doc. No. 2 at 1.) The requisite time has passed, and P etitio n e r has filed nothing in response to the court's order. Consequently, the court c o n c lu d e s that dismissal of this case is appropriate for Petitioner's failure to comply with the co u rt's order. 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 Petitioner's failure to comply with the order of this c o u rt.

It is further O R D E R E D that on or before March 3, 2010, the parties may file objections to the R e c o m m e n d a tio n . Any objections filed must specifically identify the findings in the M a g is tra te Judge's Recommendation to which the party is objecting. Frivolous, conclusive o r general objections will not be considered by the District Court. The parties are advised th a t 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 advisements in the M a g is tra te Judge's Recommendation shall bar the party from a de novo determination by the D is tric t Court of issues covered in the Recommendation and shall bar the party from a tta c k in g on appeal factual findings in the Recommendation accepted or adopted by the D i s t r i c t Court except upon grounds of plain error or manifest injustice. Nettles v.

W a in w r ig h t, 677 F.2d 404 (5 th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 3 3 (11 th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11 th Cir. 1981) (en b a n c ), adopting as binding precedent all of the decisions of the former Fifth Circuit handed d o w n prior to the close of business on September 30, 1981. D o n e this 18 th day of February, 2010.

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

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