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McDonald v. Hughes

United States District Court, M.D. Alabama, Northern Division

September 3, 2014

WARREN F. McDONALD, III, Plaintiff,
v.
PRESTON HUGHES, et al., Defendants.

RECOMMENDATION OF THE MAGISTRATE JUDGE

TERRY F. MOORER, Magistrate Judge.

This 42 U.S.C. § 1983 action is pending before the court on a complaint filed by Warren F. McDonald ["McDonald"], an indigent inmate. In the complaint, McDonald challenges conditions to which he was subjected during his confinement at the Covington County Jail.

On August 5, 2014, an order was entered advising McDonald to inform the court of whether he sought to proceed with this cause of action. Doc. No. 21. McDonald failed to respond to this order. Consequently, the court issued an order directing McDonald to show cause for this failure. Doc. No. 22. This order cautioned McDonald "that if he files no response to the prior order and/or this order the undersigned will recommend that this case be dismissed." Id. The postal service returned this order because McDonald no longer resided at the address on file with the court. Based on the foregoing, it is clear that McDonald failed to comply with the directive set forth in the order of procedure that he immediately inform the court of any change in his address. Doc. No. 4 at 5.

The record before the court establishes that McDonald has failed to comply with the directives of the orders entered by this court. In addition, this case cannot properly proceed in his absence. It likewise appears that McDonald is no longer interested in the prosecution of this case. The court therefore concludes that this case is due to be dismissed. Moon v. Newsome, 863 F.2d 835, 837 (11th Cir.1989) (As a general rule, where a litigant has been forewarned, dismissal for failure to obey a court order is not an abuse of discretion.); see also Tanner v. Neal, 232 Fed.Appx. 924 (11th Cir.2007) (affirming sua sponte dismissal without prejudice of inmate's § 1983 action for failure to file a response in compliance with court's prior order directing such action and warning of consequences for failure to comply).

Accordingly, it is the RECOMMENDATION of the Magistrate Judge that this case be dismissed without prejudice for failure of the plaintiff to comply with the orders of this court.

It is further

ORDERED that on or before September 18, 2014 the parties may file objections to the Recommendation. Any objections filed must specifically identify the findings in the Magistrate Judge's Recommendation to which the party is objecting. Frivolous, conclusive or general objections will not be considered by the District Court. The parties are advised that this Recommendation is not a final order of the court and, therefore, it is not appealable.

Failure to file written objections to the proposed findings and advisements in the Magistrate Judge's Recommendation shall bar the party from a de novo determination by the District Court of issues covered in the Recommendation and shall bar the party from attacking on appeal factual findings in the Recommendation accepted or adopted by the District Court except upon grounds of plain error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981, en banc ), adopting as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981.


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