McCall v. United States Marshal Service ( 2022 )

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA EASTERN DIVISION DARRON MCCALL, ) ) Plaintiff, ) ) v. ) Case No. 1:21-cv-00443-MHH-JHE ) BEN FOUNTAIN, et al., ) ) Defendants. ) MEMORANDUM OPINION Plaintiff Darron McCall filed a pro se amended complaint under 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), in which he alleges violations of his rights under the Constitution or laws of the United States. (Doc. 13). On August 26, 2022, the magistrate judge entered a report in which he recommended that the Court dismiss Mr. McCall’s federal claims pursuant to 28 U.S.C. § 1915A(b)(1)-(2) for failing to state a claim upon which relief may be granted. (Doc. 17). The magistrate judge also recommended that the Court dismiss without prejudice an potential state-law claims against the defendants pursuant to 28 U.S.C. § 1367(c)(3). (Doc. 17). The Clerk mailed the magistrate judge’s report and recommendation to Mr. McCall at the Morgan County Jail. (Doc. 17). The Postal Serviced returned the mailing as undeliverable and with a notation that Mr. McCall was no longer at the facility. (Doc. 18). The magistrate judge noted the Federal Bureau of Prisons website indicated that Mr. McCall had been transferred to FCI-Ashland in Ashland, Kentucky. (Doc. 19, p. 1). Therefore, the magistrate judge directed the Clerk to resend the report and recommendation to Mr. McCall at his current address. (Doc. 19 at 1). The magistrate judge advised Mr. McCall that he had 14 days to file objections to the report and recommendation. (Doc. 19 at 1). On September 30, 2022, the Court received from Mr. McCall a motion for an extension of time to file objections to the report and recommendation. (Doc. 20). Mr. McCall stated that he had been transferred recently and needed until “the beginning of 2023” to file objections. (Doc. 20, p. 2). On October 4, 2022, the magistrate judge granted Mr. McCall’s motion for an extension of time in part and denied it in part and ordered Mr. McCall to file objections within 30 days of the entry date of the order. (Doc. 21). More than 30 days have passed, and Mr. McCall has not filed objections to the report and recommendation or otherwise responded to the magistrate judge’s order. After consideration of the record in this case including the magistrate judge’s report, the Court adopts the report and accepts the magistrate judge’s recommendation. Consistent with that recommendation and 28 U.S.C. § 1915A(b)(1)-(2), by separate order, the Court will dismiss Mr. McCall’s federal claims without prejudice for failure to state a claim upon which relief may be granted. Additionally, to the extent Mr. McCall asserts state-law claims against the defendants, the Court will dismiss those claims without prejudice pursuant to 28 U.S.C. § 1367(c)(3). DONE and ORDERED this December 22, 2022. Madilisi UNITED STATES DISTRICT JUDGE