IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

ROY LEE MILLER, #105774, :

Plaintiff, :

vs. : CIVIL ACTION 08-00368-KD-B

RICHARD ALLEN, et al., :

Defendants. :

REPORT AND RECOMMENDATION

In an Order dated January 27, 2010, the undersigned noted that

the Alabama Department of Corrections’ website reflects that

Plaintiff is now incarcerated at St. Clair Correctional Facility,

1000 St. Clair Road, Springville, Alabama 35146-9790; however,

Plaintiff has not updated his address with the Court even though he

was previously warned that he must advise the Court of a change in

his address or suffer the dismissal of his action. (Doc. 2 at 10;

Doc. 6 at 7). The Court further observed that it appears that

Plaintiff has lost interest in this case in that he has not kept

the Court apprised of his address, and his last contact with the

Court was in June 2008. Plaintiff was therefore ordered to inform

the Court in writing, by February 23, 2010, if he wished to proceed

with the litigation of this action. Plaintiff was cautioned that

his failure to comply with the Court’s Order within the prescribed

time or to notify the Court of a change address will be treated as

an abandonment of the prosecution of this action, and that this

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action would be dismissed without prejudice. 

A review of the docket reflects that Plaintiff has failed to

respond to the Court’s Order. Accordingly, 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. The law is settled that a court may dismiss

an action sua sponte under Rule 41(b) for failure to prosecute or

failure to obey a court order. Fed. R. Civ. P. 41(b); 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 action for lack of

prosecution); Brown v. Tallahassee Police Dept., 205 Fed. Appx. 802

(llth Cir. 2006)(unpublished); World Thrust Films, Inc. v.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.

Case 1:08-cv-00368-KD-B Document 8 Filed 04/19/10 Page 2 of 5
181, 126 L.Ed.2d 140 (1993). 

The attached sheet contains important information regarding

objections to this Report and Recommendation.

DONE this 19th day of April, 2009.

 /s/ SONJA F. BIVINS 

UNITED STATES MAGISTRATE JUDGE 

 

Case 1:08-cv-00368-KD-B Document 8 Filed 04/19/10 Page 3 of 5
1

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

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)©); Lewis v. Smith, 855 F.2d

736, 738 (11th Cir. 1988). 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,

in part, 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.

Case 1:08-cv-00368-KD-B Document 8 Filed 04/19/10 Page 4 of 5
2. Opposing party’s response to the objection. Any opposing

party may submit a brief opposing the objection within fourteen

(14) days of being served with a copy of the statement of

objection. Fed. R. Civ. P. 72; SD ALA LR 72.4(b). 

3. 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

Case 1:08-cv-00368-KD-B Document 8 Filed 04/19/10 Page 5 of 5