Mareno v. Henline (INMATE 2)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

WENDELL LEON MARENO, JR., )

)

Plaintiff, )

)

v. ) CIVIL ACTION NO. 2:20-CV-580-RAH

) [WO]

WARDEN HENLINE, )

)

Defendant. )

RECOMMENDATION OF THE MAGISTRATE JUDGE

Plaintiff filed this pro se U.S.C. § 1983 action challenging conditions at the Elmore County

Jail. On August 13, 2020, the Court entered an order requiring Plaintiff to submit—on or before

August 27, 2020—an appropriate affidavit in support of a motion for leave to proceed in forma

pauperis, or pay the requisite filing and administrative fees. Doc. 2. The order cautioned Plaintiff

that his failure to comply with the directives of the order would result in a Recommendation this

case be dismissed. Id.

The Court has received no response from Plaintiff to the August 13, 2020 order, and the

time for doing so has expired. The foregoing reflects Plaintiff’s lack of interest in the continued

prosecution of this case. This action cannot properly proceed absent Plaintiff’s participation in the

proceedings. Under the circumstances of this case, the Court finds that sanctions lesser than

dismissal are not appropriate. See Abreu-Velez v. Board of Regents of Univ. System of Georgia,

248 F. App’x 116, 117–18 (11th Cir. 2007). Thus, this case is due to be dismissed. See Moon v.

Newsome, 863 F.2d 835, 837 (11th Cir. 1989) (holding that, as a general rule, where a litigant has

been forewarned, dismissal for failure to obey a court order is not an abuse of discretion.); see also

Link v. Wabash R.R. Co., 370 U.S. 626, 629–31 (1962) (acknowledging that the authority of courts

to impose sanctions for failure to prosecute or obey an order is longstanding and empowers courts

“to manage their own affairs so as to achieve the orderly and expeditious disposition of cases”);

Mingo v. Sugar Cane Growers Co-Op of Fla., 864 F.2d 101, 102 (11th Cir. 1989) (holding that

“[t]he district court possesses the inherent power to police its docket . . . . The sanctions imposed

[upon dilatory litigants] can range from a simple reprimand to an order dismissing the action with

or without prejudice”).

Accordingly, it is the RECOMMENDATION of the Magistrate Judge that this case be

DISMISSED without prejudice for failure of Plaintiff to pay the initial partial filing fee in

accordance with the provisions of 28 U.S.C. § 1915(b)(1)(A) as ordered by this Court.

On or before October 30, 2020, Plaintiff may file an objection to this 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, is not appealable.

Failure to file written objections 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 16th day of October, 2020.

/s/ Stephen M. Doyle

STEPHEN M. DOYLE

CHIEF UNITED STATES MAGISTRATE JUDGE