IN THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

WILLIAM C. SLATER, JR., :

 : 

Plaintiff, :

 :

vs. : CIVIL ACTION 05-0406-CG-M 

 : 

BOB RILEY, et al., : 

 :

Defendants. : 

 

REPORT AND RECOMMENDATION

Plaintiff, an Alabama prison inmate proceeding pro se,

filed a complaint under 42 U.S.C. § 1983 together with a

Motion for Leave to Proceed Without Prepayment of Fees on

outdated forms (Docs. 1, 2). This action was referred to the

undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local

Rule 72.2, and is before the Court for Plaintiff's failure to

prosecute and to comply with the Court’s Order. 

On August 16, 2005, the Court ordered Plaintiff to

complete and file this Court’s current form for a complaint

under 42 U.S.C. § 1983 and for a motion to proceed without

prepayment of fees by September 9, 2005 (Doc. 3). Plaintiff

was warned that his failure to comply with the Order within

the prescribed time would result in the dismissal of his

action (Doc. 3). The Order was mailed to Plaintiff at

Fountain Correctional Facility, P. O. Box 3800, Atmore,

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Alabama 36503, his last known address. The Court’s Order

dated August 16, 2005, has not been returned to the Court, nor

has the Court, to date, heard from Plaintiff since this Order

was entered. The Court finds that Plaintiff has abandoned

prosecution of this action.

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

for failure to prosecute and to obey the Court's order, as no

other lesser sanction will suffice. Link v. Wabash R. R., 370

U.S. 626, 630, 82 S.Ct. 1386, 1388-89, 8 L.Ed.2d 734, 738

(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

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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).

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 ten 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

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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.

DONE this 30th day of September, 2005.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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