Shavers v. Hutchinson et al

Filing 10

ORDER ADOPTING 4 Final Report and Recommendation; DISMISSING plaintiff's complaint; DENYING 9 Motion for Extension of Time to Submit IFP Authorization Form. Signed by Judge William S. Duffey, Jr on 5/18/2015. (adg)

I.

BACKGROUND
On October 29, 2014, Plaintiff, an inmate at the Gwinnett County Jail in

Lawrenceville, Georgia, filed his Complaint, seeking injunctive relief against
Gwinnet County, Georgia Superior Court Judge George F. Hutchinson, III and
Nigel Lush, Assistant District Attorney for Gwinnet County, Georgia (together,
“Defendants”) in relation to Plaintiff’s criminal case currently pending in Gwinnett
County, Georgia. (Complaint at 1-2).
On November 3, 2014, the Magistrate Judge ordered [2] Plaintiff to submit,
within thirty (30) days of the date of the order, either the filing and administrative
fee of $400 or a completed application to proceed in forma pauperis (“IFP
Application”). (November 3, 2014, Order, at 1). The Magistrate Judge ordered
Plaintiff to include a jail official’s certification (“Certificate”) regarding Plaintiff’s
inmate financial account with any IFP Application filed. (Id.).
On November 10, 2014, Plaintiff filed his IFP Application [3], but did not
include a completed Certificate. Plaintiff, thus, did not comply with the Magistrate
Judge’s November 3, 2014, Order. On November 18, 2014, the Magistrate Judge
recommended that the Court dismiss Plaintiff’s Complaint for Plaintiff’s failure to
comply with the November 3, 2014, Order. (R&R at 2). The Magistrate Judge

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also recommended dismissing Plaintiff’s Complaint for failure to state a claim
upon which relief can be granted. (Id. at 2-3).
Plaintiff did not file any objections to the R&R. On December 12, 2014,
Plaintiff filed his Motion for Extension. As of the date of this Order, Plaintiff has
not submitted a completed Certificate.
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); Williams v.
Wainwright, 681 F.2d 732, 732 (11th Cir. 1982), cert denied, 459 U.S. 1112
(1983). 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 district judge
must conduct a plain error review of the record. United States v. Slay, 714 F.2d
1093, 1095 (11th Cir. 1983).

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B.

Analysis

As Plaintiff has not objected to the Magistrate Judge’s R&R, the Court
reviews the Magistrate Judge’s findings and recommendations for plain error. See
Slay 714 F.2d at 1095. The Magistrate Judge found that Plaintiff failed to comply
with the November 3, 2014, Order, and properly recommended that the Court
dismiss Plaintiff’s Complaint.1 See LR 41.3(A)(2), NDGa. The Magistrate Judge
also recommended dismissing Plaintiff’s Complaint for failure to state a claim
upon which relief can be granted. The Magistrate Judge noted that the Court is not
authorized to provide injunctive relief in Plaintiff’s pending criminal case, or to
direct the conduct of Defendants in that case. (R&R at 2-3); see also 28 U.S.C.
§ 1361 (mandamus relief limited to federal officials); Younger v. Harris,
401 U.S. 37 (1971) (absent extraordinary circumstances, federal courts should abstain
from interfering with ongoing state proceedings). The Court finds no plain error in

Magistrate Judge’s findings and recommendation. See Slay, 714 F.2d at 1095.

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The Court notes that Plaintiff, despite having filed his Motion for Extension
on December 12, 2014, has not complied with the Magistrate Judge’s November 3,
2014, Order, in the intervening five months. The Court concludes that denial of
Plaintiff’s Motion for Extension is warranted.
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III.

CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Linda T. Walker’s Final

Report and Recommendation [4] is ADOPTED.
IT IS FURTHER ORDERED that Plaintiff’s Complaint [1] is
DISMISSED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Extension of
Time to Submit IFP Authorization Form [9] is DENIED.

SO ORDERED this 18th day of May, 2015.

_______________________________
WILLIAM S. DUFFEY, JR.
UNITED STATES DISTRICT JUDGE

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