Chambers v. State of Georgia

Filing 5

OPINION and ORDER adopting the Magistrate Judge's 3 Final Report and Recommendation. Petitioner's "Notification of Civil Suit" 1 is DISMISSED WITHOUT PREJUDICE pursuant to Local Rule 41.3 A.(2). Signed by Judge William S. Duffey, Jr. on 09/06/2012. (dfb)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
TYRONE CHAMBERS,
Petitioner,
v.

1:12-cv-1807-WSD

STATE OF GEORGIA,
Respondent.

OPINION AND ORDER
This matter is before the Court on Magistrate Judge Susan S. Cole’s Final
Report and Recommendation (“R&R”) [3] that this action be dismissed without
prejudice for Tyrone Chambers’ (“Petitioner”) failure to comply with a lawful
Order of the Court.
I.

BACKGROUND
On May 23, 2012, Petitioner, a prisoner in the Calhoun State Prison in

Morgan, Georgia, filed his pro se “Notification of Civil Suit” against the State of
Georgia (“Respondent”) challenging his conviction as wrongful and seeking
redress for improper actions taken by state officials in the conduct of his
prosecution. (Pet’r’s Notification of Civil Suit at 1-2). On June 13, 2012,

construing his filing as a Section 2254 habeas petition,1 and taking judicial notice
that Petitioner already has a habeas corpus action pending in this Court, the
Magistrate Judge ordered Petitioner “to either (1) file a motion voluntarily to
dismiss this action because it is unnecessary in light of his other habeas action,
currently pending, or (2) pay the $5.00 filing fee for this action or execute and
return a financial affidavit seeking leave to proceed in forma pauperis, and execute
and return a habeas corpus petition.” (Order of June 13, 2012, at 1). Petitioner
was also advised “that failure to pay the filing fee or submit the required financial
affidavit within thirty (30) days of the entry date of this Order will result in
dismissal of this action, as will a motion voluntarily to dismiss this action.” (Id. at
1-2).
On August 13, 2012, the Magistrate Judge issued her Final R&R
recommending that Plaintiff’s claim be dismissed without prejudice for failure to
follow a lawful order of this Court. (R&R at 1).
To date, Petitioner has not responded to the Magistrate Judge’s Order of
June 13, 2012, has not filed objections to the Final R&R, and has not paid the
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The Court notes that Petitioner’s filing could also be construed as seeking relief
pursuant to 28 U.S.C. § 1983. The manner in which the filing is construed is not
determinative to the outcome of this action because in either case, Petitioner has
failed to comply with the Court’s order to pay the required filing fee or submit the
required financial affidavit in order to proceed with a civil action in this Court.
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filing fee or submitted the required financial affidavit to proceed in forma
pauperis.
II.

DISCUSSION
A district judge “shall make a de novo determination of those portions of the

report or specified proposed findings or recommendations to which objection is
made.” 28 U.S.C. § 636(b)(1). With respect to those findings and
recommendations to which a party has not asserted objections, the Court must
conduct a plain error review of the record. United States v. Slay, 714 F.2d 1093,
1095 (11th Cir. 1983), cert. denied, 464 U.S. 1050 (1984). Because Plaintiff did
not object to the R&R, the Court reviews it for plain error.
The Court has reviewed the findings and recommendations in the R&R and
concluded plain error was not committed in reaching them. Local Rule 41.3
provides that the Court may dismiss a civil case for want of prosecution if a
plaintiff fails to obey a lawful order of the Court. L.R. 41.3 (A)(2), N.D. Ga.
Petitioner failed to comply with the Court’s June 13, 2012, Order after being
warned that failure to file pay the filing fee or submit an application to proceed in
forma pauperis may result in dismissal of this action for failure to obey a lawful
order of the Court. (June 13, 2012, Order at 1-2). As a result, the Magistrate
Judge found that Petitioner failed to obey a lawful order of the Court and

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recommended, pursuant to Local Rule 41.3 A.(2), that this action be dismissed
without prejudice.
III.

CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that the Court ADOPTS Magistrate Judge

Susan S. Cole’s Final Report and Recommendation [3].
IT IS FURTHER ORDERED that Petitioner’s “Notification of Civil Suit”
[1] is DISMISSED WITHOUT PREJUDICE pursuant to Local Rule 41.3 A.(2).

SO ORDERED this 6th day of September, 2012.

_________________________________________

WILLIAM S. DUFFEY, JR.
UNITED STATES DISTRICT JUDGE

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