BUTLER v. PINERIO

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA SAVANNAH DIVISION

DARRYL PERNELL BUTLER, ) ) Plaintiff, ) ) v. ) CV423-063 ) AARON PINERIO, et al., ) ) Defendants. )

ORDER The Court previously recommended that pro se plaintiff Darryl Pernell Butler’s “Notice of Voluntary Dismissal,” doc. 34, be granted and Defendants Pineiro, Glen, and Kaigler be dismissed. See doc. 37 at 1-4. The Court also directed Plaintiff and Defendant Mieres to confer and file a joint settlement status report. Id. at 4. The recommendation remains pending before the District Judge and no party has filed an objection. See generally docket. Plaintiff and Mieres have not complied with the Court’s Order. Id. Despite Plaintiff and Mieres’ noncompliance, it appears that the parties may have failed to receive actual notice of the prior Order.1

Shortly after the Order and Report and Recommendation was sent to Plaintiff, the Clerk received his Notice of Change of Address, which is

deemed filed2 before the Order and Report and Recommendation. Compare doc. 37 (entered November 30, 2023), with doc. 38 (docketed December 7, 2023, but dated November 23, 2023). Court records reflect

that the Order and Report and Recommendation was only sent to Plaintiff’s prior address at Coastal State Prison. Records also indicate that, although Defendant Mieres’ counsel is admitted pro hac vice, see

doc. 30, the Order and Report and Recommendation was not served upon local counsel, see doc. 28 at 1 (designating Ms. Beth Boone, Esq. as local counsel).

Given the Court’s uncertainty as to the parties’ notice of its prior Order, before any remedial action is taken, the Court will afford them an opportunity to explain their failure to comply. Accordingly, Plaintiff and

1 To be clear, it does appear that both were effectively served. See Fed. R. Civ. P. 5(b)(2)(C), (E). 2 Under the “prison mailbox rule,” a pro se prisoner’s filing is deemed filed on date it is delivered to prison authorities for mailing, which is presumed to be the date it was signed. See, e.g., Washington v. United States, 243 F.3d 1299, 1301 (11th Cir. 2001). Defendant Mieres are DIRECTED to confer, if possible, and file the joint status report attached to the Court’s prior Order by no later than January 22, 2024. Within that same period, both Plaintiff and Defendant Mieres

are DIRECTED to respond to this Order and SHOW CAUSE why they failed to comply with the Court’s prior Order. The Clerk is DIRECTED

to include a copy of the Court’s prior Order and Report and Recommendation, doc. 37, with the service copy of this Order for the parties’ convenience. SO ORDERED, this 22nd day of December, 2023. hntgto~d. lie CHRISTOPHER L. RAY UNITED STATES MAGISTRATE JUDGE SOUTHERN DISTRICT OF GEORGIA