United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
WILLIAM E. CASSADY UNITED STATES MAGISTRATE JUDGE.
Plaintiff
Michael Edward Traver, who is proceeding pro se and
in forma pauperis, [1]filed an action, which was
referred to the undersigned for appropriate action pursuant
to United States District Judge Moorer's order (Doc. 10),
28 U.S.C. § 636(b)(1)(B), and S.D. Ala. GenLR
72(a)(2)(S). Upon review of the Court's file in this
action, it is recommended that this action be dismissed
without prejudice for failure to prosecute and to obey that
Court's Local Rules.
In
reviewing the docket in this action, the undersigned finds
that plaintiff has taken no action since January 16, 2018,
when he filed his complaint (Doc. 1), motion to remove
conviction based on new evidence (Doc. 2)
(“motion”), and motion to proceed without
prepayment of fees (Doc. 3). In the complaint (Doc. 1) and
motion (Doc. 2), plaintiff requested damages and his criminal
cases be removed from the record. Plaintiff's complaint
(Doc. 1) and motion (Doc. 2) contain only a typewritten
signature for him and no physical or postal address. Thus,
the only address that the Court has for plaintiff is an email
address. (Doc. 2). Moreover, in his motion to proceed without
prepayment of fees, plaintiff indicated in the space for an
address that he was homeless. (Doc. 3 at 1). Twice, the
Clerk's Office emailed plaintiff requesting him to come
in and sign the consent form in order for him to receive
notices from the Court by email. (Jan. 19, 2018 notation,
between Docs. 2, 3). To date, plaintiff has not come in and
signed the consent form or contacted the Court about signing
the form. (Id.).
In
examining the Court's entire docket, the Court discovered
that plaintiff filed another civil action, Traver v.
FBI, Civil Action No. 18-0020-KD-M (S.D Ala. 2018),
which was dismissed without prejudice for plaintiff's
failure to prosecute his action and obey the Court's
Local Rules. In that action, the Court only had an email
address for plaintiff, and he did not execute the Clerk's
Office's consent form for him to receive emails. (Doc.
3).
In
addition, the Court's docket reflects two criminal
actions against plaintiff: USA v. Traver, Criminal
No. 11-00196-CB-B (S.D. Ala. 2012), [2] in which he pled guilty to
the offense of bank robbery and received a sentence of
forty-six months to be served with the Bureau of Prisons,
with mental health/drug treatment and located near his home
in Indiana, and three years of supervised release with
substance abuse/use and mental health treatment (Doc. 29,
Jan. 11, 2012); and USA v. Traver, Criminal No.
18-00028-JB-N (S.D. Ala. 2018), in which he was charged with
assault on a federal employee (probation officer) and, in a
bench trial, was found not guilty by reason of insanity.
(Doc. 33, Aug. 28, 2018). Subsequently, he was transferred to
a facility to determine if he would create a substantial risk
of bodily injury to another or serious damage to the property
of another. Upon finding that he would not, the facility
returned plaintiff to this Court, and he was released and
unconditionally discharged by the Court on February 14, 2019.
(Doc. 36).
This
Court's Local Rules governing persons proceeding without
counsel require that “[a]ny person proceeding pro
se must, . . ., keep the Clerk informed of his . . .
current address and telephone number. A pro se party
must promptly notify the Clerk of any change of address or
telephone number. Failure to comply with this Rule may result
in sanction, including dismissal of a pro se
plaintiff's action[.]” S.D. Ala. GenLR 83.5(b).
This Rule also provides that a pro se litigant is
bound by the Court's Local Rules and the Federal Rules of
Civil and Criminal Procedure. S.D. Ala. GenLR 83.5(a);
see Moon v. Newsome, 863 F.2d 835, 837 (11th Cir.
1989) (“once a pro se IFP litigant is in court, he is
subject to the relevant law and rules of court, including the
Federal Rules of Civil Procedure”), cert.
denied, 493 U.S. 960 (1989). Furthermore, a pro
se litigant is required to personally sign each document
filed and to include, beneath the signature, his typed or
printed name, address, and telephone number. S.D. Ala. GenLR
5(a)(4).
If a
plaintiff's objective is to proceed with litigation
against a defendant by filing a complaint, it is fundamental
that the plaintiff provide the Court with his contact
information, so the Court and a defendant can contact him and
send documents to him. By not responding to the Clerk's
Office's request to sign its consent form[3] so he can use his
email address for notices and communication with the Court
and defendant(s), and by not complying with the more specific
requirements of the Local Rules requiring his address, phone
number, and actual signature on his pleadings so he can
otherwise conduct the litigation of the present lawsuit,
plaintiff has elected not to proceed with the prosecution of
his action. Thus, the undersigned finds that plaintiff has
abandoned the prosecution of his action.
Courts
are vested with the inherent authority “to manage their
own affairs so as to achieve the orderly and expeditious
disposition of cases.” Link v. Wabash R.R.,
370 U.S. 626, 630-31, 82 S.Ct. 1386, 1389, 8 L.Ed.2d 734
(1962). The court's authority to dismiss an action
sua sponte for lack of prosecution is considered an
inherent power of the court. Id. at 630, 82 S.Ct. at
1389; Equity Lifestyle Prop., Inc. v. Florida Mowing
& Landscape Serv., Inc., 556 F.3d 1232, 1240 (11th
Cir. 2009); Zocaras v. Castro, 465 F.3d 479, 483
(11th Cir. 2006); Betty K Agencies, Ltd. v. M/V
Monada, 432 F.3d 1333, 1337-38 (11th Cir. 2005). A court
is vested with this power “in order to prevent undue
delays in the disposition of pending cases and to avoid
congestion in the calendars of the District Court.”
Equity Lifestyle Prop., Inc., 556 F.3d at 1240
(citation and internal quotation marks omitted).
Accordingly,
it is recommended that this action be dismissed without
prejudice for failure to prosecute and to obey the Local
Rules.
NOTICE
OF RIGHT TO FILE OBJECTIONS
A copy
of this Report and Recommendation shall be served on all
parties in the manner provided by law. Any party who objects
to this recommendation or anything in it must, within
fourteen (14) days of the date of service of this document,
file specific written objections with the Clerk of this
Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b);
S.D. Ala. Gen.LR 72(c). The parties should note that under
Eleventh Circuit Rule 3-1, “[a] party failing to object
to a magistrate judge's findings or recommendations
contained in a Report and Recommendation in accordance with
the provisions of 28 U.S.C. § 636(b)(1) waives the right
to challenge on appeal the district court's order based
on unobjected-to factual and legal conclusions if the party
was informed of the time period for objecting and the
consequences on appeal for failing to object. In the absence
of a proper objection, however, the court may review on
appeal for plain error if necessary in the interests of
justice.” 11th Cir. R. 3-1. In order to be specific, an
objection must identify the specific finding or
recommendation to which objection is made, state the basis
for the objection, and specify the place in the Magistrate
Judge's Report and Recommendation where the disputed
determination is found. An objection that merely incorporates
by reference or refers to the briefing before the Magistrate
Judge is not specific.
DONE
and ORDERED.
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