Ortiz v. McNeil

Full title: RODOLFO G. ORTIZ, Petitioner, v. WALT McNEIL, Defendant

Court: United States District Court, N.D. Florida, Tallahassee Division

Date published: Jul 14, 2008

CASE NO. 4:08cv182-WS/WCS (N.D. Fla. Jul. 14, 2008)

Opinion

CASE NO. 4:08cv182-WS/WCS.

July 14, 2008

REPORT AND RECOMMENDATION

WILLIAM SHERRILL JR., Magistrate Judge

In an order filed June 2, 2008, Petitioner was directed to file an amended petition by July 3, 2008, and was warned of dismissal if he failed to comply with that order. Doc. 11. On June 16, 2008, Petitioner's copy of that order was returned to the Clerk undelivered with the envelope marked "Return to Sender, Expiration of Sentence." A check with DOC records indicated that Petitioner was released from custody on May 23, 2008, and gave his forwarding address as 13781 SW 66^th Street, #128B, Miami, Florida. On June 18, 2008, the clerk re-mailed a copy of the order to the forwarding address. Doc. 13. To date, no response has been received from the Petitioner and the second copy of the order sent to Petitioner's forwarding address has not been returned to the Clerk's office undelivered.

A trial court has inherent power to dismiss a case sua sponte for failure to prosecute. Link v. Wabash R.R., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). Fed.R.Civ.P. 41(b) authorizes a district court to dismiss an action for failure to obey a court order. Moon v. Newsome, 863 F.2d 835, 838 and cases cited (11th Cir.), cert. denied, 493 U.S. 863 (1989). Since Petitioner has failed to comply with an order or to prosecute this case, this petition should now be dismissed without prejudice.

Petitioner shall have a 15 day period after service of this report and recommendation in which to file objections. This will also afford Petitioner a final opportunity to show good cause for this failure to respond. Petitioner may do so by filing a motion for reconsideration which will be referred to me by the Clerk.

It is therefore, respectfully RECOMMENDED that this case be DISMISSED without prejudice.

IN CHAMBERS at Tallahassee, Florida.

NOTICE TO PARTIES

Within 15 days after being served with a copy of this report and recommendation, a party may serve and file specific, written objections to the proposed findings and recommendations. A party may respond to another party's objections within 10 days after being served with a copy thereof. Failure to file specific objections limits the scope of review of proposed factual findings and recommendations.