Richards v. Goodfellas Restaurant et al

Filing 14

OPINION AND ORDER adopting Magistrate Judge Janet F. Kings Final Report and Recommendation 9 and dismissing this action without prejudice. Signed by Judge William S. Duffey, Jr on 9/27/16. (ddm) Modified on 9/28/2016 to edit file date (ddm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
BURT EUDEL RICHARDS,
Plaintiff,
v.

1:15-cv-1719-WSD

GOODFELLAS RESTAURANT
and ATLANTA POLICE,
Defendants.

OPINION AND ORDER
This matter is before the Court on Magistrate Judge Janet F. King’s Final
Report and Recommendation [9] (“R&R”), recommending that this action be
dismissed without prejudice.
On May 5, 2015, Plaintiff Burt Eudel Richards (“Plaintiff”), a prisoner,
proceeding pro se, filed his Civil Rights Complaint Pursuant to 42 U.S.C.
§ 1983 [1] (“Complaint”), alleging false imprisonment, slander, defamation, and
“false accusation.” ([1] at 3). Plaintiff seeks “restitution.” ([1] at 3). Plaintiff
does not allege any facts supporting his claims. On June 27, 2015, Plaintiff filed
his Affidavit and Authorization for Withdrawal from Inmate Account [6], which
the Magistrate Judge construed as his motion to proceed in forma pauperis
(“IFP Application”). On July 23, 2015, the Magistrate Judge granted Plaintiff’s

IFP Application, ordered Plaintiff to keep the Clerk advised of his address “at all
times” during the pendency of this action, warned Plaintiff that his failure to do so
would result in dismissal of his Complaint, and noted that service of process would
not issue until Plaintiff’s Complaint was screened pursuant to 28 U.S.C. § 1915A.
([7] at 2).1 A copy of the Magistrate Judge’s July 23, 2015, Order was mailed to
Plaintiff’s address of record but, on August 3, 2015, was returned as undeliverable.
([8]).
On August 12, 2015, the Magistrate Judge issued her R&R, recommending
that this action be dismissed without prejudice because Plaintiff failed to keep the
Court apprised of his address. Plaintiff has not filed objections to the R&R, and
the Court thus reviews it for plain error. See United States v. Slay, 714 F.2d 1093,
1095 (11th Cir. 1983), cert. denied, 464 U.S. 1050 (1984). A copy of the R&R
was mailed to Plaintiff’s address of record and, on August 24, 2015, was returned
as undeliverable. On September 14, 2015, Plaintiff filed his Notice of Change of
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“The court shall review, before docketing, if feasible or, in any event, as
soon as practicable after docketing, a complaint in a civil action in which a
prisoner seeks redress from a governmental entity or officer or employee of a
governmental entity.” 28 U.S.C. § 1915A(a). The Court is required to dismiss the
complaint if it is “frivolous, malicious, or fails to state a claim upon which relief
may be granted.” 28 U.S.C. § 1915A(b)(1). A claim is frivolous, and must be
dismissed, where it “lacks an arguable basis either in law or in fact.”
Miller v. Donald, 541 F.3d 1091, 1100 (11th Cir. 2008).
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Address [12].
The Local Rules provide that a pro se party’s failure to “keep the clerk’s
office informed of any change in address . . . which causes a delay or otherwise
adversely affects the management of the case shall constitute grounds . . . for
dismissal of the action without prejudice.” LR 41.2(B), NDGa. The Magistrate
Judge ordered Plaintiff to keep the Court advised of his current address “at all
times” during the pendency of this suit. ([7] at 2). Plaintiff did not do so, in
violation of both the Magistrate Judge’s Order and the Local Rules. This
prevented Plaintiff from receiving mailed copies of the Magistrate Judge’s R&R
and July 23, 2016, Order. Plaintiff Complaint also fails to assert any facts in
support of his claims, and thus “fails to state a claim upon which relief may be
granted.” 28 U.S.C. § 1915A(b)(1).
Because Plaintiff’s Complaint fails to state a claim, and Plaintiff failed to
keep the Court advised of his address, in violation of the Local Rules and the
Magistrate Judge’s Order, the Court finds that Plaintiff’s Complaint should be
dismissed without prejudice. See Quinlan v. Pers. Transp. Servs. Co., 329 F.
App’x 246, 249 (11th Cir. 2009) (“[W]e never have stated that a district court
sua sponte must allow a plaintiff an opportunity to amend where it dismisses a
complaint without prejudice. The district court dismissed Quinlan’s [pro se]
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complaint without prejudice and, thus, was not required to give Quinlan an
opportunity to amend.” (citations omitted)); Lankster v. AT & T, No. 13-cv-45,
2013 WL 1389982, at *4 (S.D. Ala. Apr. 4, 2013) (“[D]ismissal of Lankster’s
Complaint would be without prejudice, not with prejudice, thereby removing this
case from” the requirement that courts permit pro se plaintiffs to file an amended
complaint before dismissal with prejudice).
For the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Janet F. King’s Final
Report and Recommendation [9] is ADOPTED.
IT IS FURTHER ORDERED that this action is DISMISSED WITHOUT
PREJUDICE.

SO ORDERED this 27th day of September, 2016.

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