Ayers v. Singleton et al

Filing 16

MEMORANDUM OPINION AND ORDER adopting the 14 Second Proposed Findings and Recommendation by Magistrate Judge for the reasons set forth therein, and that the plaintiff's action is dismissed without prejudice. Signed by Judge John T. Copenhaver, Jr. on 1/5/2018. (cc: plaintiff, pro se; counsel of record; United States Magistrate Judge) (taq)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
ERIC D. AYERS,
Plaintiff,
v.

Civil Action No. 2:14-cv-28753

CORPORAL SINGLETON,
Defendant.
MEMORANDUM OPINION AND ORDER
This action was previously referred to Dwane L.
Tinsley, United States Magistrate Judge, who has submitted his
Second Proposed Findings and Recommendation pursuant to the
provisions of 28 U.S.C. § 636(b)(1)(B).
On March 27, 2017, the magistrate judge entered his
first Proposed Findings and Recommendation, recommending
dismissal of plaintiff’s claims without prejudice.

Notice to

the plaintiff at his last reported address was returned as
undeliverable.

On July 11, 2017, plaintiff notified the court

of his new address at the Metro Detention Center in Albuquerque,
New Mexico.

Under the assumption that plaintiff had not

received the first Proposed Findings and Recommendation, and
treating his filing of an updated address as an indication that
he wished to proceed, this court again referred the matter to
Judge Tinsley by order filed October 19, 2017.
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Order and Notice was entered on October 23, 2017,
directing the plaintiff to file a new Application to Proceed
Without Prepayment of Fees and Costs by November 27, 2017.
Notice of both this court’s order and the Order and Notice were
returned as undeliverable.

Plaintiff failed to file a new

Application to Proceed by the required date and has not provided
a new address.
The court has reviewed the Second Proposed Findings
and Recommendation entered by the magistrate judge on December
5, 2017.

The magistrate judge again recommends that the court

dismiss the plaintiff’s complaint, without prejudice, pursuant
to Fed. R. Civ. P. 41(b) for failure to prosecute.
to the plaintiff was returned as undeliverable.

Notice sent

The plaintiff,

proceeding pro se, has not objected to the Second Proposed
Findings and Recommendation.
The plaintiff having failed to keep the court advised
of his current whereabouts and having failed to object to either
of the Proposed Findings and Recommendations, it is ORDERED that
the Second Proposed Findings and Recommendations be, and hereby
is, adopted by the court for the reasons set forth therein, and
that the plaintiff’s action be, and hereby is, dismissed without
prejudice.

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Byrd United States Courthouse in Charleston, before
the undersigned, unless canceled. Lead counsel
directed to appear.
02/29/2016

Entry of scheduling order.

03/08/2016

The Clerk is directed to forward copies of this
Last day to serve F.R. Civ. P 26(a)(1) disclosures.

writtenClerk is requested to transmit se plaintiff, all counsel
The opinion and order to the pro this Order and
Notice to all counsel of record and to any unrepresented
of record, and the United States Magistrate Judge.
parties.
DATED: January 5, 2016
ENTER: January 5, 2018
John T. Copenhaver, Jr.
United States District Judge

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