1

This case was transferred from the Middle District of

Alabama and filed on November 24, 2009.

 IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

MICHAEL WILLIAMS, :

Plaintiff, :

vs. : CIVIL ACTION 09-00774-WS-B

TONY PATTERSON, et al., :

Defendants. :

REPORT AND RECOMMENDATION

Plaintiff, an Alabama prison inmate proceeding pro se, filed

the instant case alleging violations under 42 U.S.C. § 1983 (Doc.

11).1 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 dated January 28, 2010, it is

recommended that this action be dismissed without prejudice. 

Plaintiff filed this § 1983 action on November 24, 2009, while

incarcerated at Fountain Correctional Facility (Doc. 11). Neither

Plaintiff’s Complaint nor his Motion to Proceed Without Prepayment

of Fees (Doc. 11) were filed on the Court’s required forms.

Accordingly, in an Order dated January 29, 2010, Plaintiff was

ordered to refile his Complaint on the Court’s form for actions

alleging violations under 42 U.S.C. § 1983 by March 1, 2010. (Doc.

Case 1:09-cv-00774-WS-B Document 13 Filed 03/26/10 Page 1 of 4
12). Plaintiff was also directed to refile his motion on the

Court’s required form for a motion to proceed without prepayment of

fees and costs, or in lieu thereof, pay the $350.00 filing fee by

March 1, 2010. (Doc. 12). 

Plaintiff was advised that if he elected not to refile on the

Court’s current form for a complaint under 42 U.S.C. § 1983 and not

to refile the motion on the court’s required form, or in lieu

therefor, to pay the filing fee, his action would be dismissed

without prejudice for failure to prosecute and to obey the Court's

order. The Court also directed the Clerk to forward to Plaintiff

the requisite forms along with a copy of the Order. To date,

Plaintiff has failed to comply with the Court’s Order. He has not

refiled his complaint on the Court’s current form. He has also

failed to file a motion to proceed without prepayment of fees on

the Court’s current form or in lieu thereof, to pay the $350.00

filing fee. Moreover, Plaintiff’s copy of the Order and forms have

not been returned to the Court. 

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

and to prosecute this action, and upon consideration of the

alternatives that are 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 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

Case 1:09-cv-00774-WS-B Document 13 Filed 03/26/10 Page 2 of 4
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 this Report and Recommendation.

DONE this 26th day of March, 2010.

 /s/ SONJA F. BIVINS 

UNITED STATES MAGISTRATE JUDGE

Case 1:09-cv-00774-WS-B Document 13 Filed 03/26/10 Page 3 of 4
MAGISTRATE JUDGE’S EXPLANATION OF PROCEDURAL RIGHTS

AND RESPONSIBILITIES FOLLOWING RECOMMENDATION

AND FINDINGS CONCERNING NEED FOR TRANSCRIPT

1. Objection. Any party who objects to this recommendation or anything

in it must, within fourteen days of the date of service of this document,

file specific written objections with the clerk of 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 days 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 action 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.

S/ SONJA F. BIVINS 

UNITED STATES MAGISTRATE JUDGE

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