Opinion
5:23-CV-56-FL
07-27-2023
RAMSEY RANDALL, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
MEMORANDUM & RECOMMENDATION
KIMBERLY A. SWANK UNITED STATES MAGISTRATE JUDGE
This pro se case is before the court on the application [DE #1] by Plaintiff Ramsey Randall to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a)(1) and for frivolity review pursuant to 28 U.S.C. § 1915(e)(2)(B), the matter having been referred to the undersigned by the Honorable Louise W. Flanagan, United States District Judge. For the reasons set forth below, the undersigned RECOMMENDS that Plaintiff's IFP application be denied and the complaint dismissed without prejudice for failure to prosecute.
Plaintiff commenced this action on February 7, 2023, by filing a motion for leave to proceed in forma pauperis and a petition for writ of certiorari, both of which are directed to the attention of the Supreme Court of the United States. On February 17, 2023, the court issued an Order of Deficiency [DE #6], noting several deficiencies in Plaintiff's filings and warning Plaintiff that failure to correct the deficiencies within fourteen days could result in dismissal of the action for failure to prosecute. The court mailed this Order of Deficiency to 2834 Avent Ferry Rd., Raleigh, NC 27606. This mailing was returned as undeliverable to the court on March 2, 2023 [DE #7]. Generally, plaintiffs have an obligation to prosecute their cases, which includes keeping the court informed of their current address. Bowie v. Reed, No. 1:12-CV-154-RJC, 2013 WL 1798968, at *1 (W.D. N.C. Apr. 29, 2013) (citing cases).
On June 28, 2023, the court entered an order noting Plaintiff's failure to comply with the February 2023 order of deficiency and further informing Plaintiff that his complaint failed to meet the requirements of Rule 8(a) of the Federal Rules of Civil Procedure. (Order dated June 28, 2023 [DE #8].) Out of an abundance of caution, the court directed the Clerk to mail copies of both orders to another address mentioned by Plaintiff in his filings. (Id.) The court gave Plaintiff until July 14, 2023, to file a complaint that meets the requirements of Rule 8 and to correct the deficiencies noted in the February 2023 deficiency order. (Id. at 2.) Plaintiff was warned that failure to do so “may result in dismissal of this action without prejudice for failure to prosecute.” (Id.) The June 28, 2023, order was mailed to the alternate address and was returned as undeliverable on July 13, 2023 [DE #9].
Plaintiff has failed to keep the court apprised of his current mailing address and to correct the deficiencies noted in the February 2023 and June 2023 orders. The time for responding to the court's orders having expired and Plaintiff having been previously warned that failure to comply with the orders may result in the action being dismissed without prejudice, the undersigned hereby recommends that Plaintiff's IFP application be denied and the complaint dismissed without prejudice for failure to prosecute.
It is DIRECTED that a copy of this Memorandum & Recommendation be served on Plaintiff, who is hereby advised as follows:
You shall have until August 14, 2023, to file written objections to the Memorandum & Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum & Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum & Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C. (May 2023).
If you do not file written objections by the foregoing deadline, you will be giving up the right to review of the Memorandum & Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum & Recommendation without such review. In addition, your failure to file written objections by the foregoing deadline may bar you from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum & Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).