McGill v. Jones

CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE

REPORT AND RECOMMENDATION

This cause is before me upon referral from the Clerk. In an order filed April 15, 2016, the Plaintiff was advised that the Habeas Petition he submitted for filing, ECF No. 1, should have been filed as a Prisoner Civil Rights Complaint pursuant to Title 42, U.S.C. Section 1983. The order directed him to file an amended complaint and to either submit the $400 filing fee or submit for filing a motion for leave to proceed in forma pauperis by May 20, 2016. Plaintiff was warned of dismissal if he did not comply with that Order. ECF No. 3. To date, no response has been received from the Plaintiff.

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, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). Fed. R. Civ. P. 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 and cases cited (11th Cir.), cert. denied, 493 U.S. 863 (1989). Plaintiff did not comply with an order or to prosecute this case. Therefore, this petition should be dismissed without prejudice.

Plaintiff 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 this failure to respond. Plaintiff 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.

IN CHAMBERS at Tallahassee, Florida, on June 1, 2016.

s/ Charles A. Stampelos

CHARLES A. STAMPELOS

UNITED STATES MAGISTRATE JUDGE

A party may file specific, written objections to the proposed findings and recommendations within 14 days after being served with a copy of this report and recommendation. A party may respond to another party's objections within 14 days after being served with a copy thereof. Failure to file specific objections limits the scope of review of proposed factual findings and recommendations.