Opinion
1:23-cv-69-RAH-SMD
04-27-2023
L.M. BURCH, Plaintiff, v. CITY OF ELBA and ELBA POLICE DEPARTMENT, Defendants.
RECOMMENDATION OF THE MAGISTRATE JUDGE
STEPHEN M. DOYLE, CHIEF U.S. MAGISTRATE JUDGE
Pro se Plaintiff L.M. Burch (“Burch”) claims that his civil rights were violated when officers with the Elba Police Department (“EPD”) arrested him on a warrant and did not allow him to take his medication for strep throat. Compl. (Doc. 1). Defendants moved to dismiss Burch's complaint, arguing that the complaint fails to state a claim for which relief may be granted. Mot. (Doc. 12). The undersigned entered an order directing Burch to file a written response and show cause, if any there be, why Defendants' motion should not be granted. Order (Doc. 14). When Burch failed to file a response, the undersigned entered a second order directing Burch to show cause why his complaint should not be dismissed for failure to prosecute or abide by orders of the Court. Order (Doc. 15). Alternatively, the undersigned afforded Burch another opportunity to file a response to Defendants' motion to dismiss. Id. p. 1. Burch was warned that “failure to file a response in accordance with this Order will result in the undersigned entering a recommendation that this case be dismissed for failure to prosecute and/or abide by orders of the Court.” Id. (emphasis removed).
Burch has not filed a response to the undersigned's Order. Nor has Burch opposed Defendants' motion to dismiss. The time for doing both has passed and Burch has not requested an extension to respond. As such, it is the
RECOMMENDATION of the undersigned Magistrate Judge that Burch's complaint (Doc. 1) be DISMISSED without prejudice for failure to prosecute and abide by orders of the Court and that Defendant's Motion to Dismiss (Doc. 12) be DENIED as MOOT. It is further
ORDERED that the parties shall file any objections to this Recommendation on or before May 11, 2023. A party must specifically identify the factual findings and legal conclusions in the Recommendation to which objection is made; frivolous, conclusive, or general objections will not be considered. Failure to file written objections to the Magistrate Judge's findings and recommendations in accordance with the provisions of 28 U.S.C. § 636(b)(1) shall bar a party from a de novo determination by the District Court of legal and factual issues covered in the Recommendation and waives the right of the party to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions 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); 11TH CIR. R. 31. See Stein v. Lanning 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).