CIVIL ACTION NO. 2:11-CV-890-WHA [WO]
RECOMMENDATION OF THE MAGISTRATE JUDGE
This 42 U.S.C. § 1983 action is pending before the court on a complaint filed by Terrence LeGerald Hollins ("Hollins"), an indigent state inmate. In the complaint, Hollins challenges the constitutionality of his restricted offender status and conditions of confinement to which he was subjected while incarcerated at the Draper Correctional Facility.
Pursuant to the orders of this court, the defendants filed a written report and supplemental written report supported by relevant evidentiary materials in which they address the claims for relief presented by Hollins. The report and evidentiary materials address the conclusory allegations presented by Hollins in the complaint. Specifically, these documents appear to demonstrate that neither the assignment to restricted offender status nor the conditions about which Hollins complains violated the Constitution.
In light of the foregoing, the court issued an order directing Hollins to file a response to the defendants' written reports. Order of October 9, 2014 - Doc. No. 50. The order advised Hollins that his failure to respond to the 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. 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 Hollins for filing a response in compliance with the directives of this order expired on October 23, 2014. As of the present date, Hollins 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. Hollins is an indigent individual. Thus, the imposition of monetary or other punitive sanctions against him would be ineffectual. Additionally, Hollins' inaction in the face of the defendants' reports and the evidence refuting the claims raised herein strongly 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 Hollins' constitutional rights occurred. In light of the foregoing, the court concludes that Hollins' 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 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 (11 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 November 13, 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 (5 Cir. 1982); see Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11 Cir. 1982); see also Bonner v. City of Prichard, 661 F.2d 1206 (11 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.
DONE, this 30 day of October, 2014.
/s/ Susan Russ Walker
SUSAN RUSS WALKER
CHIEF UNITED STATES MAGISTRATE JUDGE