IN THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

ERIC WAYNE DAVIDSON, :

 :

Plaintiff, :

vs. :

: CIVIL ACTION 05-0335-BH-M

BALDWIN COUNTY CORRECTION :

CENTER, et al., :

:

Defendants. :

REPORT AND RECOMMENDATION

Plaintiff, a Baldwin County prison inmate proceeding pro

se, filed a complaint under 42 U.S.C. § 1983 (Doc. 1). This

action, which has been referred to the undersigned pursuant to

28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2(c)(4), is before

the Court for Plaintiff's failure to prosecute.

On August, 16, 2005, after review of Plaintiff’s Motion

to Proceed Without Prepayment of Fees (Doc. 3), the Court

ordered Plaintiff to pay a $7.71 partial filing fee within

twenty days (Doc. 6). This Order was mailed to Plaintiff at

Baldwin County Corrections Center, 200 Hand Avenue, Bay

Minette, his last known address, and was returned by postal

authorities with the notation “Return to Sender Not At This

Address.” On September 28, 2005, the Court contacted the

Baldwin County Corrections Center and discovered that

Plaintiff was released on July 19, 2005. Plaintiff was

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previously warned that his failure to notify the Court

immediately of a change in address would result in the

dismissal of his action for failure to prosecute and to obey

the Order of the Court (Doc. 6). 

Because Plaintiff has not notified the Court of a change

in his address, the Court finds that Plaintiff has abandoned

prosecution of this action. Upon consideration of other

available alternatives, 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, 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. 1993).

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

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sanction); Malautea v. Suzuki Motor Co., 987 F.2d 1536, 1545-

46 (11th Cir. 1993)(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

original brief may be submitted or referred to and

incorporated into the brief in support of the

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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 28th day of September, 2005.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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