Yarborough v. UNITED STATES OF AMERICA

Filing 9

ORDER Overruling 4 REPORT AND RECOMMENDATIONS re 1 Complaint filed by Jesse Yarborough Recommending that this case be dismissed without prejudice for lack of prosecution, as demonstrated by his failure to comply with the Courts Order. Granting [5 ] MOTION for Leave to Proceed in forma pauperis filed by Jesse Yarborough and granting 7 MOTION for Leave to Proceed in forma pauperis filed by Jesse Yarborough. This case is referred back to Magistrate Judge White. Signed by Judge Adalberto Jordan on 10/16/08. (tp)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION CASE NO. 08-21548-CIV-JORDAN JESSE YARBOROUGH, ) ) Plaintiff, ) vs. ) ) THE UNITED STATES OF AMERICA ) Defendant. ) ____________________________________ ) OR D ER OVERRULING REPORT AND RECOMMENDATION Magistrate Judge White's report recommending dismissal [D.E. 4] is OVERRULED for the recusal which follow. On June 16, 2008, Magistrate Judge White entered an order compelling Mr. Yarborough to amend his complaint, and to either pay the filing fee or to file a motion to proceed in forma pauperis [D.E. 3]. This order apparently referred, incorrectly, to a different case dealing with requests for religious services. This case is not about religious services, but rather about Mr. Yarborough's allegation that government officials lost his personal property while he was incarcerated. Mr. Yarborough failed to amend his complaint or file a motion to proceed IFP within the time frame required by Magistrate Judge White's order, and on July 29, Magistrate Judge White issued his report recommending dismissal of Mr. Yarborough's claim based on his apparent failure to prosecute [D.E. 4]. Shortly thereafter, Mr. Yarborough moved for leave to proceed IFP [D.E. 5], and cited as grounds for his tardiness the fact that his corrections facility was on lock down [D.E. 6]. Due to the confusion surrounding Magistrate Judge White's order and excusable neglect on the part of Mr. Yarborough to timely comply, the dismissal of this case for failure to prosecute is not warranted. Accordingly, Magistrate Judge White's report recommending dismissal is overruled. Mr. Yarborough's IFP motions [D.E. 5, D.E. 7] are GRANTED, and the case is referred back to Magistrate White.
DONE

and ORDERED in chambers in Miami, Florida, this 16th day of October, 2008.

_______________________ Adalberto Jordan United States District Judge cc: Magistrate Judge White; Jesse Yarborough, pro se; and all counsel of record