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Elliott v. Hamm

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

January 12, 2015

DAVID R. ELLIOTT, Plaintiff,
v.
DEWAYNE HAMM, et al., Defendants.

RECOMMENDATION OF THE MAGISTRATE JUDGE

SUSAN RUSS WALKER, Chief Magistrate Judge.

Plaintiff filed this pro se 42 U.S.C. ยง 1983 complaint on October 18, 2013. On July 1, 2014, the court directed Defendants to file an answer and written report addressing Plaintiff's claims for relief. In compliance with the court's order, Defendants submitted an answer and written report on October 2, 2014, which contained relevant evidentiary materials refuting the allegations presented in the instant complaint and indicated that Plaintiff failed to exhaust available administrative remedies. Doc. No. 22. The court then issued an order directing Plaintiff to file a response to Defendants' answer and written report. Doc. No. 23. Plaintiff was advised that his failure to respond to Defendants' answer and written report 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. Additionally, Plaintiff was "specifically cautioned that [his failure] to file a response in compliance with the directives of this order" would result in the dismissal of this case. Id.

The time allotted Plaintiff for the filing of a response expired on October 27, 2014. As of the present date, Plaintiff has filed nothing in opposition to Defendants' answer and written report as required by order filed October 6, 2014. Consequently, the court concludes that Plaintiff's abandonment of his claims, his failure to comply with the orders of this court, and his failure to properly prosecute this cause of action warrant dismissal of this case.

For the foregoing 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 26, 2015, the parties may file an objection to the Recommendation. Any objection filed must specifically identify the findings in the Magistrate Judge's Recommendation to which a party objects. Frivolous, conclusive or general objections will not be considered by the District Court. The parties are advised this Recommendation is not a final order and, therefore, it is not appealable.

Failure to file a written objection to the proposed findings and recommendations in the Magistrate Judge's report shall bar the party from a de novo determination by the District Court of issues covered in the report and shall bar the party from attacking on appeal factual findings in the report 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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