IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

JOE HENRY SCOTT, III, :

Plaintiff, :

vs. : CIVIL ACTION 09-00676-WS-B

WALTER MYERS, et al., :

Defendants. :

REPORT AND RECOMMENDATION

This is an action by a former Alabama inmate alleging

violations of 42 U.S.C. § 1983. This case was referred to the

undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B)

and Local Rule 72.2(c)(4) for appropriate action. Because

Plaintiff has failed to prosecute and to comply with the Court’s

Order (Doc. 7), it is recommended that this action be dismissed

without prejudice. 

Plaintiff filed this § 1983 action on October 14, 2009, while

incarcerated at Fountain Correctional Facility (Doc. 1). Because

Plaintiff did not pay the $350.00 filing fee or submit a motion to

proceed without prepayment of fees when he filed his Complaint, the

Court directed Plaintiff to file a motion to proceed without

prepayment of fees or in lieu thereof, pay the $350.00 filing fee

by November 16, 2009. (Doc. 2). Plaintiff, on November 5, 2009,

filed the requisite motion to proceed without prepayment of fees.

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Subsequent thereto, Plaintiff filed a Notice of Change of Address

(Doc. 5). In an Order dated January 14, 2009 (Doc. 7), the Court

observed that Plaintiff’s Notice reflected that he had been

released from custody, and that because Plaintiff initiated this

action while he was a prisoner, he remained obligated to pay the

$350.00 filing fee in this action. Gay v. Texas Dep’t of Corrs.

State Jail Div., 117 F.3d 240, 242 (5th Cir. 1997); 28 U.S.C. §

1915(b)(1). Accordingly, Plaintiff was directed to pay the

filing fee by February 17, 2010, or in lieu thereof, to submit a

new motion to proceed without prepayment of fees so the Court could

determine a payment schedule for the payment of the $350.00 filing

fee. (Doc. 7). Plaintiff was cautioned that his failure to comply

with the Court’s Order within the prescribed time would result in

the dismissal of this action for failure to prosecute and to obey

the Court’s Order. Plaintiff’s copy of the Court’s January 14, 2010

Order has not been returned to the Court, nor has Plaintiff

contacted the court since the Order was entered. 

Due to Plaintiff’s failure to comply with the Court’s Order

dated January 14, 2010 (Doc. 7), the undersigned concludes that

Plaintiff has abandoned the prosecution of his action. Upon

consideration of the alternatives available to the Court, it is

recommended that this action be dismissed without prejudice

pursuant to Rule 41(b) of the Federal Rules of Civil Procedure as

no other lesser sanction will suffice. Link v. Wabash R. R., 370

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U.S. 626, 630, 82 S. Ct. 1386, 8 L. Ed. 2d 734 (1962) (interpreting

Rule 41(b) not to restrict the court’s inherent authority to

dismiss sua sponte an action for lack of prosecution); World Thrust

Films, Inc. v. International Family Entertainment, Inc., 41 F.3d

1454, 1456-57 (11th Cir. 1995); Mingo v. Sugar Cane Growers Co-op,

864 F.2d 101, 102 (11th Cir. 1989); Goforth v. Owens, 766 F.2d

1533, 1535 (11th Cir. 1985); Jones v. Graham, 709 F.2d 1457, 1458

(11th Cir. 1983). Accord Chambers v. NASCO, Inc., 501 U.S. 32, 111

S.Ct. 2123, 115 L.Ed.2d 27 (1991) (ruling that federal courts’

inherent power to manage their own proceedings authorized the

imposition of attorney’s fees and related expenses as a sanction);

Malautea v. Suzuki Motor Co., 987 F.2d 1536, 1545-46 (11th Cir.)

(finding that the court’s inherent power to manage actions before

it permitted the imposition of fines), cert. denied, 510 U.S. 863,

114 S.Ct. 181, 126 L.Ed.2d 140 (1993).

The attached sheet contains important information regarding

objections to the Report and Recommendation.

DONE this 4th day of March, 2010.

 /s/SONJA F. BIVINS 

UNITED STATES MAGISTRATE JUDGE

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The Court’s Local rules are being amended to reflect the new

computations of time as set out in the amendments to the Federal Rules

of Practice and Procedure, effective December 1, 2009.

MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND 

RESPONSIBILITIES FOLLOWING RECOMMENDATION, AND

FINDINGS CONCERNING NEED FOR TRANSCRIPT

l. Objection. Any party who objects to this recommendation, or

anything in it, must, within fourteen (14) days of the date of service

of this document, file specific written objections with the Clerk of this

Court. Failure to do so will bar a de novo determination by the district

judge of anything in the recommendation and will bar an attack, on

appeal, of the factual findings of the Magistrate Judge. See 28 U.S.C.

§ 636(b)(1)(C); Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988);

Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982)(en banc).

The procedure for challenging the findings and recommendations of the

Magistrate Judge is set out in more detail in SD ALA LR 72.4 (June 1,

1997), which provides that:

A party may object to a recommendation entered by a magistrate

judge in a dispositive matter, that is, a matter excepted by

28 U.S.C. § 636(b)(1)(A), by filing a “Statement of Objection

to Magistrate Judge’s Recommendation” within ten days1 after

being served with a copy of the recommendation, unless a

different time is established by order. The statement of

objection shall specify those portions of the recommendation

to which objection is made and the basis for the objection.

The objecting party shall submit to the district judge, at the

time of filing the objection, a brief setting forth the

party’s arguments that the magistrate judge’s recommendation

should be reviewed de novo and a different disposition made.

It is insufficient to submit only a copy of the original brief

submitted to the magistrate judge, although a copy of the

original brief may be submitted or referred to and

incorporated into the brief in support of the objection.

Failure to submit a brief in support of the objection may be

deemed an abandonment of the objection. 

A magistrate judge's recommendation cannot be appealed to a Court

of Appeals; only the district judge's order or judgment can be appealed.

2. Transcript (applicable Where Proceedings Tape Recorded). Pursuant

to 28 U.S.C. § 1915 and FED.R.CIV.P. 72(b), the Magistrate Judge finds

that the tapes and original records in this case are adequate for

purposes of review. Any party planning to object to this recommendation,

but unable to pay the fee for a transcript, is advised that a judicial

determination that transcription is necessary is required before the

United States will pay the cost of the transcript.

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