Mahone v. Thomas et al (INMATE2)

Filing 3

ORDER and RECOMMENDATION OF THE MAGISTRATE JUDGE as follows: It is the Recommendation of the Magistrate Judge that the instant complaint be dismissed without prejudice. Ordered that (1) the clerk file a copy of Document #1 from the present action in Civil Action Number 3:07cv500-MEF and docket said pleading as a supplement to the petition in that case; (2) the clerk file a copy of this order in Civil Action No. 3:07cv500-MEF; (3) petitioner's 2 Motion for Leave to Proceed in forma pauperis is DENIED as moot. Objections to R&R due by 7/17/2007. Signed by Judge Wallace Capel Jr. on 7/5/07. (sl, )

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Mahone v. Thomas et al (INMATE2) Doc. 3 Case 3:07-cv-00600-WKW-WC Document 3 Filed 07/05/2007 Page 1 of 3 IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA E A S T E R N DIVISION _____________________________ DEAN ERIC MAHONE, #214 209 P e t i t io n e r , v. W IL L IE THOMAS, WARDEN, et al., R e s p o n d e n ts . _____________________________ * * * * * 3:07-CV-600-WKW (WO) O R D E R AND RECOMMENDATION OF THE MAGISTRATE JUDGE T h e above-captioned action was filed in this court on June 28, 2007. Upon review of th e petition, the undersigned is persuaded that Petitioner's June 28 pleading is actually his c o m p lia n c e with an order entered on June 8, 2007 in Mahone v. Thomas, Civil Action No. 3 :0 7 -C V -5 0 0 -M E F . In that order, the court directed Petitioner to supplement his petition by c o m p le tin g a form used in filing petitions pursuant to 28 U.S.C. 2254. The order further d ire c te d Petitioner to return the completed form to the court for filing on or before June 22, 2 0 0 7 . A review of the Petitioner's June 28 pleading also reflects that he referenced the case n u m b e r for his pending habeas corpus case on the first page of the form petition . (See Doc. N o . 1 at 1.) In light of the foregoing, the court finds it appropriate to recommend that the instant p e titio n be dismissed. The court further deems it appropriate to direct the Clerk to file a c o p y of Petitioner's June 28, 2007 pleading in Civil Action No. 3:07-CV-500-MEF and Dockets.Justia.com Case 3:07-cv-00600-WKW-WC Document 3 Filed 07/05/2007 Page 2 of 3 docket said pleading as a supplement in that action in accordance with the court's June 8, 2 0 0 7 order entered in that case. Accordingly, it is the RECOMMENDATION of the Magistrate Judge that the instant c o m p la in t be DISMISSED without prejudice. It is ORDERED that: 1. The Clerk file a copy of Document Number 1 from the present action in Civil A c tio n Number 3:07-CV-500-MEF and docket said pleading as a supplement to the petition in that case; 2. 3. The Clerk FILE a copy of this order in Civil Action No. 3:07-CV-500-MEF; Petitioner's Motion for Leave to Proceed In Forma Pauperis (Doc. No. 2), filed o n June 28, 2007, be DENIED as moot. It is further O R D E R E D that the parties are DIRECTED to file any objections to the R e c o m m e n d a tio n on or before July 17, 2007. Any objections filed must specifically id e n tif y the findings in the Magistrate Judge's Recommendation to which a party objects. F r iv o lo u s , conclusive or general objections will not be considered by the District Court. The p a rtie s 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 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 Case 3:07-cv-00600-WKW-WC Document 3 Filed 07/05/2007 Page 3 of 3 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 i s 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 5 th day of July 2007. /s / Wallace Capel, Jr. W A L L A C E CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE

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