IN THE UNITED STATES DISTRICT COURT FOR THE 

 SOUTHERN DISTRICT OF ALABAMA 

 SOUTHERN DIVISION 

DEAN HAROLD CURRY, : 

 

Plaintiff, : 

vs. : CIVIL ACTION 09-00404-WS-N 

STATE OF ALABAMA, 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 (Docs. 1, 5). 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 June 16, 2010, it is recommended that this action 

be dismissed without prejudice. 

On October 5, 2009, plaintiff notified the court of a change of address (Doc. 13). 

A review of Alabama Department of Corrections’ website reflects that Plaintiff is no 

longer in its custody. Accordingly, on June 16, 2010, the Court issued an Order directing 

plaintiff to notify the Court by July 16, 2010 if he wished to proceed with the litigation of 

this action and also to inform the Court if he was still incarcerated (Doc. 16). Plaintiff 

was also ordered to pay the remainder of the filing fee, $346.33, or file a new motion to 

proceed without prepayment of fees by July 16, 2010 (Doc. 16). The Court directed the 

Clerk to forward to Plaintiff a copy of the requisite form along with a copy of the Order. A 

review of the docket sheet reflects that the Order has not been returned as 

Case 1:09-cv-00404-WS-N Document 17 Filed 07/28/10 Page 1 of 3
undeliverable. Plaintiff has failed to file this Court=s form for a motion to proceed 

without prepayment of fees or paid the $346.33 remainder of the filing fee. 

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 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 28th day of July, 2010. 

 

 KATHERINE P. NELSON 

 UNITED STATES MAGISTRATE JUDGE 

Case 1:09-cv-00404-WS-N Document 17 Filed 07/28/10 Page 2 of 3
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 AStatement of Objection to Magistrate Judge=s Recommendation@ within 

fourteen 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/ KATHERINE P. NELSON 

UNITED STATES MAGISTRATE JUDGE

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