The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Plaintiff, Marcus R. Ellington, a state prisoner proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge under 28 U.S.C. § 636(b)(1)(B) and Local General Order No. 262.
On June 6, 2008, the Magistrate Judge filed Findings and Recommendations, which were served on all parties and contained notice to all parties that any objections to the Findings and Recommendations were to be filed within twenty days. Ellington has filed objections to the Findings and Recommendations.
The Court previously dismissed Ellington's amended complaint granting him leave to file a second amended complaint. Docket No. 182. At Docket No. 187 Ellington filed his second amended complaint. The Magistrate Judge, upon completion of the initial screening process, has recommended dismissal with prejudice for the failure of Ellington to comply with the warnings to cease and desist in making excessive filings. In his objections, Ellington does not address the findings of the Magistrate Judge. Instead, compounding his disregard for procedural protocol, Ellington filed a 54-page document that included numerous extraneous exhibits, including another copy of his "Additional Memorandum in Support of the Second Amended Complaint" (addressing housing with CRIP gang members), "Additional Facts in Support of 42 USC § 1983 Complaint," (addressing complaints against persons other than Sweeten and Barron), and "Additional Declaration in Support of Second Amended Complaint," (also addressing his housing complaints). None of these are relevant any claim he has against Sweeten and/or Barron.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 72-304, this Court has conducted a de novo review of this case. Having carefully reviewed the entire file, with particular attention to those portions relevant or pertinent to the objections raised, the Court finds the Findings and Recommendations to be supported by the record and by proper analysis. While the Court shares the frustration of the Magistrate Judge, it is the opinion of the Court that, at this juncture, notwithstanding Ellington's persistent disregard of admonishments about extraneous filings, dismissal with prejudice appears to be an unduly harsh remedy. Accordingly, the Court will dismiss the Second Amended Complaint, without prejudice, and grant Ellington an opportunity to file a third amended complaint.
The following guide is provided Plaintiff to follow in drafting his amended complaint:
1. The amended complaint must-
(a) comply with the requirements of the Civil Rights Act, the Federal Rules of Civil Procedure, and the Local Rules of Practice,
(b) be submitted on the form provided with this order,
(c) name only custodial officers Sweeten and Barron as defendants in the caption;
(d) bear the docket number assigned to this case, and
(e) be clearly captioned "Third Amended Complaint";
3. For each named defendant, Sweeten and Barron, describe how that person is personally involved in violating Ellington's rights, i.e., specify what act or omission of the defendant violated ...