Wilkins v. Monestero

Full title: TYRONE WILKINS, Plaintiff, v. DR. MONESTERO, et al., Defendants

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

Date published: Dec 4, 2008

Case No.: 3:07cv60/RV/MD (N.D. Fla. Dec. 4, 2008)

Opinion

Case No.: 3:07cv60/RV/MD.

December 4, 2008

REPORT AND RECOMMENDATION

MILES DAVIS, Magistrate Judge

This cause is before the court upon referral from the Clerk. On November 27, 2007, plaintiff filed a second amended civil rights complaint naming two defendants: Dr. Monestero and Baptist Health Care. (Doc. 27). On February 1, 2008, the court directed service of the amended complaint.

Defendant Baptist Health Care waived service of summons on May 5, 2008. (Doc. 35). Thereafter, Baptist Health Care filed a motion for summary judgment which was granted on September 11, 2008. (Doc. 45).

Defendant Dr. Monestero has not been served. The United States Marshals Service has twice attempted service upon this defendant. On both occasions service was returned unexecuted indicating that Dr. Monestero was not at the address provided by plaintiff. (Docs. 32, 46). On September 16, 2008 the court issued an order directing plaintiff to file with the court the current address of defendant Dr. Monestero. (Doc. 47). Plaintiff was given thirty days in which to comply with the order, and warned that failure to do so would result in a recommendation of dismissal of his claims against this defendant. ( Id.). Plaintiff did not respond to the order. Accordingly, on November 3, 2008 the court issued an order directing plaintiff to show cause within twenty days why his claims against Dr. Monestero should not be dismissed. (Doc. 48). A copy of the order was mailed to plaintiff at his address of record. However, on November 10, 2008 the mail was returned as undeliverable marked "Return to Sender, Attempted — Not Known, Unable to Forward." (Doc. 49). Over thirty days has elapsed, and plaintiff has not filed a change of address form or otherwise notified the court of his new address. Additionally, plaintiff still has not provided an address for Dr. Monestero as required by the court's September 16, 2008 order.

Accordingly it is respectfully RECOMMENDED:

1. That plaintiff's claims against defendant Dr. Monestero be DISMISSED WITHOUT PREJUDICE for plaintiff's failure to comply with an order of the court.

2. That judgment be entered accordingly, i.e., according to the order adopting this Report and Recommendation and the order granting judgment in favor of Baptist Health Care (doc. 45).

3. That the clerk be directed to close the file.

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed within ten days after being served a copy hereof.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 any objections shall be served upon any other parties. Failure to object may limit the scope of appellate review of factual findings. See 28 U.S.C. § 636; United States v. Roberts, 858 F.2d 698, 701 (11^th Cir. 1988).