United States District Court, M.D. Alabama, Northern Division
December 17, 2014
RODNEY ALVERSON, #132431, Plaintiff,
MS. COPELAND, et al., Defendants
Rodney Alverson, Plaintiff, Pro se, Elmore, AL.
For Ms. Copeland, Medical Administrator, sued individually whom acted in her official capacity and acted under the color of State law, Corizon Medical Services, Nurse Giles, sued individually whom acted in her official capacity and acted under the color of State law, Defendants: William Richard Lunsford, LEAD ATTORNEY, Maynard Cooper & Gale PC, Huntsville, AL.
For Stephanie Atchison, sued individually whom acted in her official capacity and acted under the color of State law, Mrs. Davenport, Classification Official, sued individually whom acted in her official capacity and acted under the color of State law, Kim Tobias Thomas, Commissioner, sued individually whom acted in his official capacity and acted under the color of State law, Louis Boyd, Warden, sued individually whom acted in his official capacity and acted under the color of State law, John Crow, Assistant Warden, sued individually whom acted in his official capacity and acted under the color of State law, Phyllis Billups, Warden, sued individually whom acted in her official capacity and acted under the color of State law, Defendants: Elizabeth Anne Sees, LEAD ATTORNEY, Alabama Department of Corrections, Legal Division, Montgomery, AL.
RECOMMENDATION OF THE MAGISTRATE JUDGE
TERRY F. MOORER, UNITED STATES MAGISTRATE JUDGE.
This 42 U.S.C. § 1983 action is pending before the court on a complaint filed by Rodney Alverson (" Alverson"), an indigent state inmate. In the complaint, Alverson challenges the constitutionality of medical treatment provided to him for scabies and ear problems, various conditions of confinement at Draper Correctional Facility, alleged acts of retaliation and purported acts of discrimination.
Pursuant to the orders of this court, the defendants filed written reports supported by relevant evidentiary materials in which they address the claims for relief presented by Alverson. The reports and evidentiary materials refute the self-serving, conclusory allegations presented by Alverson in the complaint. Specifically, these documents appear to demonstrate that no violation of Alverson's constitutional rights occurred.
In light of the foregoing, the court issued an order directing Alverson to file a response to the defendants' written reports. Order of August 13, 2014 - Doc. No. 45 . The order advised Alverson that his failure to respond to the reports would be treated by the court " as an abandonment of the claims set forth in the complaint and as a failure to prosecute this action." Id. at 1 (emphasis in original). Additionally, the order " specifically cautioned [the plaintiff] that [his failure] to file a response in compliance with the directives of this order" would result in the dismissal of this civil action. Id. The time allotted Alverson for filing a response in compliance with the directives of this order expired on November 17, 2014. As of the present date, Alverson has failed to file a response in opposition to the defendants' written reports. The court therefore concludes that this case should be dismissed.
The court has reviewed the file to determine whether a less drastic measure than dismissal is appropriate. After such review, it is clear that dismissal of this case is the proper course of action at this time. Alverson is an indigent individual. Thus, the imposition of monetary or other punitive sanctions against him would be ineffectual. Additionally, Alverson's inaction in the face of the defendants' reports and the overwhelming evidence refuting the claims raised herein suggests he does not seek to proceed with this case. Consequently, it appears that any additional effort by this court to secure his compliance would be unavailing. Finally, the undisputed evidentiary materials submitted by the defendants indicate that no violation of Alverson's constitutional rights occurred. In light of the foregoing, the court concludes that Alverson's abandonment of his claims and his failure to comply with an order of this court warrant dismissal. Moon v. Newsome, 863 F.2d 835, 837 (11 Cir. 1989) (As a general rule, where th 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 an amendment to complaint in compliance with court's prior order directing amendment and warning of consequences for failure to comply).
For the above stated reasons, it is the RECOMMENDATION of the Magistrate Judge that this case be dismissed without prejudice. It is further
ORDERED that on or before January 5, 2015 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 decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981.