Winfrey v. State of Georgia

Filing 5

OPINION AND ORDER adopting Magistrate Judge Linda T. Walker's Final Report and Recommendation 3 and dismissing this action without prejudice. Signed by Judge William S. Duffey, Jr. on 6/19/18. (ddm)

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

1:18-cv-874-WSD

STATE OF GEORGIA,
Respondent.

OPINION AND ORDER
This matter is before the Court on Magistrate Judge Linda T. Walker’s Final
Report and Recommendation [3] (“Final R&R”), which recommends the action be
dismissed without prejudice.
On February 26, 2018, Petitioner Castor Tyrone Winfrey (“Petitioner”), a
state prisoner, proceeding pro se, sent the Court a “LETTER ROGATORY FOR
RELIEF.” ([1] at 1). Because it appeared from the letter that Petitioner challenged
his judgment of conviction, the Court construed the letter as seeking relief under
the federal habeas corpus laws. ([2]). The Court provided Petitioner a habeas
petition form and an application to proceed in forma pauperis (the “IFP
Application”).

On March 8, 2018, the Court ordered Petitioner to complete the IFP
Application and return it within twenty-one (21) days if he desired to seek habeas
relief in this Court. (Id.). The Court also warned Petitioner that failure to comply
could result in dismissal of the case. (Id.). On April 20, 2018, the Magistrate
Judge, not having received anything in response to the March 8th Order,
recommended dismissing the action without prejudice.
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 (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 objections have not been asserted, 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). Where, as here, no
party filed objections to the Final R&R, the Court reviews the Court reviews it for
plain error.

2

The Court finds no plain error in the Magistrate Judge’s findings and
recommendation. See Fed. R. Civ. P. 4(c), (m) (failing to comport with the service
deadline may result in dismissal without prejudice); Fed. R. Civ. P. 41(b); L.R.
41.3(A)(2), N.D. Ga. (“The court may, with or without notice to the parties,
dismiss a civil case for want of prosecution if . . . [a] plaintiff . . . shall, after notice,
. . . fail or refuse to obey a lawful order of the court in the case . . . .”).
Accordingly,
IT IS HEREBY ORDERED that Magistrate Judge Linda T. Walker’s Final
Report and Recommendation [3] is ADOPTED.
IT IS FURTHER ORDERED that this action is DISMISSED WITHOUT
PREJUDICE.
SO ORDERED this 19th day of June, 2018.

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