Carter v. Jones et al (INMATE 2)

Filing 35

REPORT AND RECOMMENDATION re 1 Inmate 1983 Complaint filed by Sean M. Carter, that this case be DISMISSED without prejudice. Objections to R&R due by 11/23/2009. Signed by Honorable Wallace Capel, Jr. on 11/9/2009. (dmn)

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA E A S T E R N DIVISION _____________________________ S E A N M. CARTER P l a in tif f , v. S H E R IF F JAY JONES, et al., D e f e n d a n ts . _____________________________ * * * * * 3:09-CV-571-TMH (WO)

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 June 18, 2009. On June 22, 2009 th e court directed Defendants to file an answer and written report addressing Plaintiff's c la im s for relief. In compliance with the court's order, Defendants submitted an answer and w ritte n report on August 17, 2009 which contained relevant evidentiary materials refuting th e allegations presented in the instant complaint. The court then issued an order directing P la in tif f to file a response to Defendants' answer and written report. (Doc. No. 24.) Plaintiff w a s advised that his failure to respond to Defendants' answer and written report would be tre a ted by the court "as an abandonment of the claims set forth in the complaint and as a failure to prosecute this action." (Id.) (emphasis in original). Additionally, Plaintiff was " s p e c i f ic a lly cautioned that [his failure] to file a response in compliance with the d ir e ctiv e s of this order" would result in the dismissal of this case. (Id.) The time allotted Plaintiff for the filing of a response expired on October 13, 2009.

A s of the present date, Plaintiff has filed nothing in opposition to Defendants' answer and w ritten report as required by order filed August 18, 2009. 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 November 23, 2009. 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 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 9 th day of November 2009.

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

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