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Jurisdiction: Alabama Middle District Court
Decision Date: 11/21/2016



                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Smith v. Baskins Smith v. Baskins (M.D. Ala., 2016)

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        DEANGELO SMITH, #299028, Plaintiff,
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        BRENNIS BASKINS, Defendant.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        CASE NO. 2: 16-CV-495-WKW

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        November 21, 2016

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        DEANGELO SMITH, #299028, Plaintiff, v. BRENNIS BASKINS, Defendant.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        CASE NO. 2: 16-CV-495-WKW

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        November 21, 2016

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        RECOMMENDATION OF THE MAGISTRATE JUDGE

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                This 42 U.S.C. 1983 action is pending before the court on a complaint filed by Deangelo Smith ("Smith"), an indigent state inmate, in which he alleges that the defendant failed to protect him from attack by another inmate on April 3, 2016 at the Kilby Correctional Facility. Pursuant to the orders of this court, the defendant filed a special report and supplemental report supported by relevant evidentiary materials, including affidavits and medical records, in which he addresses Smith's claim for relief. The reports and evidentiary materials refute Smith's self-serving, conclusory allegations. The defendant asserts, and the documented evidence indicates, that the defendant did not act in violation of Smith's constitutional rights.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                In light of the foregoing, the court issued an order directing Smith to file a response to the defendant's written reports. Doc. 21. The order advised Smith that his failure to respond to the reports would be treated by the court "as an abandonment of the claims set forth in the complaint and as a failure to prosecute this action. " Doc. 21 at 1.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 2

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Additionally, the order "specifically cautioned the plaintiff that his failure to file a response in compliance with the directives of this order" would result in the dismissal of this civil action. Doc. 21 at 1. The time allotted to Smith for filing a response in compliance with the directives of this order expired on October 28, 2016. Doc. 23. Smith has failed to file the required response in opposition to the defendant's written reports. The court therefore concludes that this case should be dismissed.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The court has reviewed the file to determine whether a measure less drastic than dismissal is appropriate. After such review, the court concludes that dismissal of this case is the proper course of action. Specifically, Smith is an indigent individual. Thus, the imposition of monetary or other punitive sanctions against him would be ineffectual. Additionally, Smith's inaction in the face of the defendant's reports and evidence suggests a loss of interest in the continued prosecution of this case. Finally, the undisputed evidentiary materials submitted by the defendant demonstrate that no constitutional violation occurred. It therefore appears that any additional effort by this court to secure Smith's compliance would be unavailing. Consequently, the court concludes that Smith's abandonment of his claims and his failure to comply with an order of this court warrant dismissal. See Moon v. Newsome 863 F.2d 835 837 (11th Cir. 1989) (holding that, as a general rule, dismissal for failure to obey a court order is not an abuse of discretion where a litigant has been forewarned); Tanner v. Neal 232 F. App'x 924 (11th Cir. 2007) (affirming sua sponte dismissal without prejudice of inmate's 1983 action for his failure to comply with court's prior order directing amendment and warning of consequences for failure to comply).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 3

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                For the above stated reasons, it is the RECOMMENDATION of the Magistrate Judge that this case be dismissed without prejudice.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                It is further ORDERED that on or before December 5 2016 the parties may file objections 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 to the Recommendation will not be considered. Failure to file written objections 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; 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 November, 2016.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                /s/ Gray M. Borden        UNITED STATES MAGISTRATE JUDGE

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