Simmonds v. Unnamed Defendant

Filing 10

OPINION AND ORDER ADOPTING the 7 Final Report and Recommendation. The action is DISMISSED WITHOUT PREJUDICE pursuant to Local Rule 41.2(C). Signed by Judge William S. Duffey, Jr on 11/8/2013. (anc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
ALDERAY Q. SIMMONDS,
Inmate No. 1234041
Plaintiff,
v.

1:13-cv-170-WSD

UNKNOWN DEFENDANT,
Defendant.

OPINION AND ORDER
This matter is before the Court on Magistrate Judge Justin S. Anand’s Final
Report and Recommendation [7] (“R&R”) recommending that this action be
dismissed.
I.

BACKGROUND
On January 11, 2013, Plaintiff Alderay Q. Simmonds (“Plaintiff”), then an

inmate at the Fulton County Jail, proceeding pro se, filed this action alleging civil
rights abuses. On January 29, 2013, Magistrate Judge Anand ordered Plaintiff,
within thirty (30) days, to either pay the Court’s standard $350 filing fee or submit
an in forma pauperis (“IFP”) application. The January 30th Order was mailed to
the Plaintiff’s address of record, but was returned marked as “Not Deliverable As

addressed.” (R&R at 1). On February 27, 2013, Magistrate Judge Anand entered
another order to deliver the January 30th Order and the proper filing forms to
Plaintiff, but the Court’s Order was also returned marked “RTS” and “IA” on
March 18, 2013.1
On July 10, 2013, Magistrate Judge Anand entered another order to deliver
the documents to Plaintiff through the care of Major Reuben Wingfield, the Fulton
County Jail Operations Manager. Although Major Wingfield did not comply with
the Order’s instruction to notify the court that he delivered the documents to
Plaintiff, none of the documents were returned to the court and Plaintiff therefore
presumably received them. On August 29, 2013, Plaintiff was released from the
Fulton County Jail. See Fulton County Inmate Search, available at
http://justice.fultoncountyga.gov/PAJailManager/JailingDetail.aspx?JailingID=343
(last visited November 6, 2013). Plaintiff has not provided the Court with his new
address.
On October 22, 2013, the Magistrate Judge issued the R&R now before the
Court. In it, the Magistrate Judge recommended that Plaintiff’s Complaint be
dismissed without prejudice pursuant to Local Rule 41.2(C) because Plaintiff failed

1

These notations presumably stand for “Return to Sender” and “Incorrect
Address.”

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to notify the Court of his current address, and as a result, the Court is unaware of
“Plaintiff’s whereabouts.” (R&R at 4). No objection has been filed.
II.

DISCUSSION
A.

Legal Standard

After conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or modify a magistrate
judge’s report and recommendation. 28 U.S.C. § 636(b)(1) (Supp. V 2011);
Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982) (per curiam). 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). If no party has objected to the report and recommendation,
a court conducts only a plain error review of the record. United States v. Slay, 714
F.2d 1093, 1095 (11th Cir. 1983) (per curiam).
B.

Analysis

As the Magistrate Judge noted in his October 22, 2013 R&R, the Court
currently does not have any information about Plaintiff’s address and does not
have other contact information for him. Plaintiff’s failure to provide the Court
with accurate contact information has delayed and adversely affected the

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management of this case, including because these proceedings cannot continue
without being able to communicate with Plaintiff.
Local Rule 41.2(C) provides that
[t]he failure . . . of a party appearing pro se to keep the clerk’s office
informed of any change in address and/or telephone number which
causes a delay or otherwise adversely affects the management of the
case shall constitute grounds . . . for dismissal of the action without
prejudice.
The Court does not find plain error in the Magistrate Judge’s findings and
recommendations in his R&R that this action be dismissed without prejudice.
III.

CONCLUSION
Accordingly, for the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Justin S. Anand’s Final

Report and Recommendation [7] is ADOPTED, and this action is DISMISSED
WITHOUT PREJUDICE pursuant to Local Rule 41.2(C).

SO ORDERED this 8th day of November, 2013.

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