Opinion
3:21cv803-LC/MAF
07-26-2021
GARY RAY TOMEY, II, Petitioner, v. W.E. MACKELBERG, WARDEN, Respondent.
REPORT AND RECOMMENDATION
MARTIN A. FITZPATRICK, UNITED STATES MAGISTRATE JUDGE
In an order filed May 28, 2021, Petitioner Gary Ray Tomey, II, was directed to file an amended § 2241 petition on or before June 28, 2021. ECF No. 4. Petitioner was specifically warned that a recommendation would be made that this case be dismissed if Petitioner failed to comply with the order. Id. at 3-4. To date, Petitioner has not complied with the Court's order.
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 (1962). Federal Rule of Civil Procedure 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 (11th Cir. 1989). Because Petitioner did not comply with an order, this petition should be dismissed without prejudice.
Petitioner shall have a 14-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 the failure to respond to the Court's order. 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.
NOTICE TO THE PARTIES
Within fourteen (14) days after being served with a copy of this Report and Recommendation, a party may serve and file specific written objections to these proposed findings and recommendations. Fed.R.Civ.P. 72(b)(2). A copy of the objections shall be served upon all other parties. A party may respond to another party's objections within fourteen (14) days after being served with a copy thereof. Fed.R.Civ.P. 72(b)(2). Any different deadline that may appear on the electronic docket is for the Court's internal use only and does not control. 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. R. 3-1; 28 U.S.C. § 636.