Prince Nellon, 984 v. Bentley

TERRY F. MOORER UNITED STATES MAGISTRATE JUDGE

ORDER AND RECOMMENDATION OF THE MAGISTRATE JUDGE

The captioned action was filed on October 17, 2016. Upon review, the undersigned is persuaded that the complaint filed is actually Plaintiff's attempt to file an amended complaint in a pending civil action he filed on August 8, 2016. See Nellon v. Bentley, et al., Civil Action No. 2:16-cv-646-WKW (M.D. Ala.). In that case, Plaintiff is under order to file an amended complaint. See Id., Doc. 6. The court further notes that the defendants named to this complaint are almost identical to the defendants named in Civil Action No. 2:16-cv-646-WKW, and the allegations in this action are similar to the claims made in Civil Action No. 2:16-cv-646-WKW. Plaintiff also references Civil Action No. 2:16-cv-646-WKW in the instant complaint stating he was "forced" to amend. Doc. 1 at 2.

In light of the foregoing, the court finds it appropriate to recommend this matter be dismissed and to direct the Clerk to file a copy of the complaint filed in the captioned action as an amended complaint in Civil Action No. 2:16-cv-646-WKW.

Accordingly, it is the RECOMMENDATION of the Magistrate Judge that the instant complaint be DISMISSED without prejudice and that no costs be taxed.

The Clerk is DIRECTED to:

1. Place a copy of the instant complaint in Nellon v. Bentley, Civil Action No. 2:16-cv-646-WKW and docket said pleading as an amended complaint in that case;

2. File a copy of this order in Civil Action No. 2:16-cv-646-WKW.

It is further

ORDERED that on or before November 17, 2016, Plaintiff may file an objection to the Recommendation. Any objection filed must specifically identify the factual findings and legal conclusions in the Magistrate Judge's Recommendation to which Plaintiff objects. Frivolous, conclusive or general objections will not be considered by the District Court. This Recommendation is not a final order and, therefore, it is not appealable.

Failure to file a written objection to the proposed findings and recommendations in the Magistrate Judge's report shall bar a party from a de novo determination by the District Court of factual findings and legal issues covered in the report and shall "waive the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions" except upon grounds of plain error if necessary in the interests of justice. 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 1st day of November, 2016.

/s/Terry F. Moorer

TERRY F. MOORER

UNITED STATES MAGISTRATE JUDGE