Banks v. Lee et al

Filing 6

REPORT AND RECOMMENDATIONS re 1 Complaint filed by Perry Maurice Banks, RECOMMENDING that plaintiff's Civil Rights Complaint be DISMISSED in accordance with the provisions of FRCP Rule 41(b). Objections to R&R due by 5/11/2009. Signed by Magistrate Judge Karen L Hayes on 4/22/09. (crt,Crawford, A)

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA MONROE DIVISION PERRY MAURICE BANKS LA. DOC # 353696 VS. CIVIL ACTION NO. 08-1909 SECTION P JUDGE JAMES MAGISTRATE JUDGE HAYES REPORT AND RECOMMENDATION Pro se plaintiff Perry Maurice Banks, proceeding in forma pauperis, filed the instant civil rights complaint on December 3, 2008. When he filed his complaint plaintiff was incarcerated at the Louisiana State Penitentiary, Angola; however, he claimed that he was the victim of excessive force when he was confined at the Franklin Parish Detention Center. This matter was referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 U.S.C. 636 and the standing orders of the court. On March 9, 2009, the undersigned completed an initial review and directed plaintiff to amend his complaint on or before April 13, 2009. [rec. doc. 4] Plaintiff has not complied with that order. LAW AND ANALYSIS Federal Rules of Civil Procedure Rule 41(b) permits dismissal of claims "For failure of the plaintiff to prosecute or to comply with ... any order of court..." The district court also has the inherent authority to dismiss an action sua sponte, without motion by a defendant. Link v. Wabash R.R.Co., 370 U.S. 626, 630-31, 82 S.Ct. 1386, 1388-89, 8 L.Ed.2d 734 (1962). "The power to invoke this sanction is necessary in order to prevent undue delays in the disposition of CHAD LEE, ET AL. pending cases and to avoid congestion in the calendars of the [d]istrict [c]ourts." McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir.1988). Petitioner has not complied with the order of March 9, 2009, or requested any extension of time to do so. Therefore, IT IS RECOMMENDED that plaintiff's Civil Rights Complaint be DISMISSED in accordance with the provisions of FRCP Rule 41(b). Under the provisions of 28 U.S.C. Section 636(b)(1)(C) and Rule 72(b), parties aggrieved by this recommendation have ten (10) business days from service of this report and recommendation to file specific, written objections with the Clerk of Court. A party may respond to another party's objections within ten (10) days after being served with a copy of any objections or response to the district judge at the time of filing. Failure to file written objections to the proposed factual findings and/or the proposed legal conclusions reflected in this Report and Recommendation within ten (10) days following the date of its service, or within the time frame authorized by Fed.R.Civ.P. 6(b), shall bar an aggrieved party from attacking either the factual findings or the legal conclusions accepted by the District Court, except upon grounds of plain error. See, Douglass v. United Services Automobile Association, 79 F.3d 1415 (5th Cir. 1996). In Chambers, Monroe, Louisiana, April 22, 2009. 2

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