Opinion
CIVIL ACTION NO. 2:17-CV-202-WKW [WO]
08-21-2019
JERRY WALKER, #208 534, Plaintiff, v. SGT. DANIEL GAY, et al., Defendants.
RECOMMENDATION OF THE MAGISTRATE JUDGE
Plaintiff filed this 42 U.S.C. § 1983 action on April 6, 2017. The court entered an order of procedure on April 28, 2017, directing Defendants to file an answer and special report. Doc. 5. This order also directed Plaintiff to "immediately inform the court and Defendants or Defendants' counsel of record of any change in his address." Id. at 3, ¶7. The order further advised Plaintiff that "[f]ailure to provide a correct address to this court within ten (10) days following any change of address will result in the dismissal of this action." Id.
It recently came to the court's attention Plaintiff is no longer at the last address he provided for service. The court entered an order on August 6, 2019, requiring Plaintiff to show cause why his complaint should not be dismissed for his failure to keep the court apprised of his current address as directed in the court's April 28, 2017, order of procedure. Doc. 26. This order specifically advised Plaintiff this case could not proceed if his whereabouts remained unknown and cautioned him that his failure to comply with its directives would result in the dismissal of this case. Id. Plaintiff's copy of the August 6, 2019, order was returned to the court on August 13, 2019, marked as undeliverable.
The foregoing makes clear Plaintiff has failed to comply with the directives of the orders entered by this court and reflects a lack of interest in the continued prosecution of this case. This action cannot proceed properly in Plaintiff's absence. The court, therefore, concludes this case is due to be dismissed. See Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989) (As a general rule, where a litigant has been forewarned, dismissal for failure to obey a court order is not an abuse of discretion.).
Accordingly, it is the RECOMMENDATION of the Magistrate Judge this case be DISMISSED without prejudice for Plaintiff's failure to comply with the orders of this court and to prosecute this action.
It is further
ORDERED that on or before September 4, 2019, the parties may file an objection to the Recommendation. A party must specifically identify the factual findings and legal conclusions in the Recommendation to which the objection is made; frivolous, conclusive, or general objections will not be considered. The parties are advised this Recommendation is not a final order and, therefore, it is not appealable.
Failure to file a written objection 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. 11th Cir. R. 3-1; see Resolution Trust Co. v. Hallmark Builders, Inc., 996 F.2d 1144, 1149 (11th Cir. 1993); Henley v. Johnson, 885 F.2d 790, 794 (11th Cir. 1989).
Done, this 21st day of August 2019.
/s/ Charles S. Coody
UNITED STATES MAGISTRATE JUDGE