IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

MITCHELL HICKS, :

Plaintiff, :

vs. : CIVIL ACTION 09-00452-KD-B

RENETTA CHAPMAN, 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, 6, 7). 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 Orders dated July 27, 2009

and September 3, 2009 (Docs. 4, 9), it is recommended that this

action be dismissed without prejudice. 

On July 22, 2009, Plaintiff filed this § 1983 action while

incarcerated at Clarke County Jail (Doc. 1). In an Order dated

July 27, 2009, Plaintiff was ordered to refile his handwritten

complaint (Doc. 1) on the Court’s form for actions alleging

violations under 42 U.S.C. § 1983 by August 27, 2009. Plaintiff

was also directed to refile his affidavit and notice of financial

history (Docs. 2, 3) on the Court’s required form for a motion to

proceed without prepayment of fees and costs by August 27, 2009.

Case 1:09-cv-00452-KD-B Document 10 Filed 02/03/10 Page 1 of 4
(Doc. 4). Plaintiff was cautioned that his failure to comply with

the Order within the prescribed time would result in the dismissal

of his action. The Court also directed the Clerk to send to

Plaintiff the appropriate forms for an action under 42 U.S.C. §

1983 and for a motion to proceed without prepayment of fees and

costs. 

Subsequent thereto, Plaintiff filed two additional handwritten

complaints, neither of which was on the Court’s required form.

Plaintiff also failed to submit a motion to proceed without

prepayment of fees, or in lieu thereof, pay the filing fee. On

September 4, 2009, this Court entered an Order extending the time

for Plaintiff’s compliance to October 2, 2009. (Doc. 9). Plaintiff

was again cautioned that his failure to comply with the Order

within the prescribed time would result in the dismissal of his

action for failure to prosecute and to obey the Court's Order. To

date, Plaintiff has failed to comply with the Court’s Orders. 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, pay the $350.00

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

have not been returned to the Court. 

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

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

Case 1:09-cv-00452-KD-B Document 10 Filed 02/03/10 Page 2 of 4
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 2nd day of February, 2010.

 /S/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

Case 1:09-cv-00452-KD-B Document 10 Filed 02/03/10 Page 3 of 4
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

l. 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 this 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 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.

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 case 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.

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