Opinion
CIVIL ACTION NO. 2:14-CV-746-WHA [WO]
09-23-2014
NATHAN WRIGHT, #265440, Plaintiff, v. ROBERT BENTLEY, et al., Defendants.
RECOMMENDATION OF THE MAGISTRATE JUDGE
Plaintiff filed this 42 U.S.C. § 1983 action on August 6, 2014, challenging the conditions of confinement to which he is subjected at the Decatur Work Release Facility. Plaintiff also complains that any funds correctional officials deduct from his work release earnings in excess of 40% violates state law and, thereby, his federal constitutional rights to due process. However, upon initiation of this case, Plaintiff did not file the $350 filing fee and $50 administrative fee applicable when a plaintiff is not proceeding in forma pauperis, nor did he submit an original affidavit in support of a motion for leave to proceed in forma pauperis accompanied by the required documentation from the inmate account clerk. Thus, the court did not have the information necessary to determine whether Plaintiff should be allowed to proceed in forma pauperis in this case and therefore entered an order requiring that Plaintiff provide the court with this information or pay the requisite fees on or before August 25, 2014. Order of August 12, 2014 - Doc. No. 3 at 1-2. The court specifically cautioned Plaintiff that failure to comply with this order would result in a recommendation that this case be dismissed. Id. at 2.
Ala. Code § 14-8-6 provides, in pertinent part, as follows:
The employer of an inmate involved in work release shall pay the inmate's wages directly to the Department of Corrections. The department may adopt regulations concerning the disbursement of any earnings of the inmates involved in work release. The department is authorized to withhold from an inmate's earnings the cost incident to the inmate's confinement as the department shall deem appropriate and reasonable. In no event shall the withheld earnings exceed 40 per cent of the earnings of the inmate. After all expenses have been deducted by the department, the remainder of the inmate's earnings shall be credited to his or her account with the department....
Plaintiff's copy of the August 12, 2014 order was returned to the court marked undeliverable on August 25, 2014 as Plaintiff was not at the address he had provided to the court for service. All parties have an affirmative duty to inform the court of any change of address during the pendency of their cases. Thus, on September 9, 2014, the undersigned directed Plaintiff to provide the court with his present address on or before September 19, 2014. Order September 9, 2014 - Doc. No. 5. Plaintiff was cautioned his failure to comply with this order would result in a recommendation that this complaint be dismissed. Id. As it appears that Plaintiff is no longer residing at the address he provided to the court upon initiation of this action and has not provided this court with a new address for service nor has he made any other attempt to contact the court regarding this case, the undersigned concludes that dismissal is appropriate.
Accordingly, it is the RECOMMENDATION of the Magistrate Judge this case be DISMISSED without prejudice for Plaintiff's failure to prosecute this action and to comply with the orders of this court.
It is further
ORDERED that on or before October 7, 2014, Plaintiff may file an objection to the Recommendation. Any objection filed must specifically identify the findings in the Magistrate Judge's Recommendation to which Plaintiff objects. Frivolous, conclusive or general objections will not be considered by the District Court. Plaintiff is 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 a party from a de novo determination by the District Court of issues covered in the report and shall bar a 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.
DONE, this 23rd day of September, 2014.
/s/ Terry F. Moorer
TERRY F. MOORER
UNITED STATES MAGISTRATE JUDGE