Opinion
CASE NO. 1:17-cv-88-MW-GRJ
08-29-2017
KENNETH JOHNSON, JR., Plaintiff, v. WILLIAM CERVONE, et al., Defendants.
REPORT AND RECOMMENDATION
Plaintiff initiated this case by filing a pro se civil rights complaint and has since filed two amended complaints to address deficiencies in his complaints. (ECF Nos. 1, 7, 9.) Plaintiff's second amended complaint, however, included claims that were subject to dismissal either as Heck barred or for failure to state a claim for which relief can be granted. (ECF No. 12.)
Because Plaintiff is proceeding pro se, the Court concluded that Plaintiff's second amended complaint liberally construed may assert a claim against his arresting officer for a violation of his Eighth Amendment constitutional right not to be subjected to the use of excessive force. (ECF Nos. 9, 12.) Plaintiff was afforded an opportunity to file a third amended complaint on or before August 9, 2017, for the limited purpose of attempting to assert a claim against his arresting officer, if any. (ECF No. 12.) The Court warned Plaintiff that failure to comply with the Court's order or to show cause as to why Plaintiff is unable to comply would result in a recommendation to the district judge that the case be dismissed without further notice for failure to prosecute and for failure to comply with a Court order. (Id.)
As of the date of this report and recommendation, Plaintiff has not complied with the Court order by failing to file a third amended complaint.
Accordingly, it is respectfully RECOMMENDED that this case be DISMISSED without prejudice for failure to prosecute and failure to comply with an Order of the Court.
IN CHAMBERS this 29th day of August 2017.
/s/_________
GARY R. JONES
United States Magistrate Judge
NOTICE TO THE PARTIES
Objections to these proposed findings and recommendations must be filed within fourteen (14) days after being served a copy thereof. Any different deadline that may appear on the electronic docket is for the Court's internal use only , and does not control. A copy of objections shall be served upon all other parties. If a party fails to object to the magistrate judge's findings or recommendations as to any particular claim or issue contained in a report and recommendation, that party waives the right to challenge on appeal the district court's order based on the unobjected-to factual and legal conclusions. See 11th Cir. Rule 3-1; 28 U.S.C. § 636.