IN THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

JOE HENRY SCOTT, III, :

 :

Plaintiff, :

 :

vs. : CIVIL ACTION 09-0591-KD-M

 :

T. MCCOVERY, et al, :

 :

Defendants. :

REPORT AND RECOMMENDATION

Plaintiff, an Alabama prison inmate proceeding pro se and in

forma pauperis (Doc. 6), filed this § 1983 action. This action

was referred to the undersigned pursuant 28 U.S.C. § 636(b)(1)(B)

and Local Rule 72.2(c)(4), and is now before the Court for

Plaintiff’s failure to prosecute and to obey the Court’s Order

(Doc. 13).

A prisoner is obligated to pay the $350.00 filing fee for

filing a § 1983 action while he is incarcerated. Gay v. Texas

Dept. of Corrections State Jail Div., 117 F.3d 240, 242 (5th Cir.

1997); 28 U.S.C. § 1915(b)(1). While Plaintiff was incarcerated,

he was granted leave to proceed without prepayment of a partial

filing fee (Doc. 6). Subsequently, Plaintiff notified the Court

of a change in his address which indicated that he was no longer

incarcerated (Doc. 12). Because Plaintiff is still obligated to

pay the $350.00 filing fee, Gay, 117 F.3d at 242, the Court

ordered Plaintiff by February 8, 2010, to pay the $350.00 filing

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fee, or to file a new motion to proceed without prepayment of

fees so the Court could determine a payment schedule for paying

the remainder of the filing fee (Doc. 13). Plaintiff was warned

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

prescribed time would result in the dismissal of this action for

failure to prosecute and to obey the Court’s Order. Plaintiff’s

copy of the Court’s Order has not been returned to the Court, nor

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

entered. 

Due to Plaintiff’s failure to comply with the Court’s Order

and to prosecute this action, it appears that Plaintiff has

abandoned his action thereby subjecting it to dismissal pursuant

to the Court’s inherent powers. Link v. Wabash R.R., 370 U.S.

626, 630-31, 82 S.Ct. 1386, 1389-90, 8 L.Ed.2d 112 (1962) (“The

authority of a court to dismiss sua sponte for lack of

prosecution has generally been considered an ‘inherent power’

governed not by rule or statute but by the control necessarily

vested in courts to manage their own affairs so as to achieved

the orderly and expeditious disposition of cases.”); Zocaras v.

Castro, 465 F.3d 479, 483 (11th Cir.) (recognizing a district

court’s inherent power to enforce orders and provide for the

efficient disposition of litigation), cert denied, 549 U.S. 1228

(2007); Wilson v. Sargent, 313 F.3d 1315, 1331-32 & n.7 (11th

Cir. 2002) (indicating that a prisoner’s failure to pay the

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partial filing fee under § 1915 is a basis for dismissal). 

This inherent power is not restricted by Rule 41(b) of the

Federal Rules of Civil Procedure, which also authorizes the

dismissal of an action as a sanction where there is “a clear

record of willful conduct and a finding that lesser sanctions are

inadequate.” Zocaras, 465 F.3d at 483; see generally Betty K

Agencies, Ltd. v. M/V Monada, 432 F.3d 1333, 1337-38 (11th Cir.

2005) (discussing dismissals pursuant to the court’s inherent

power and dismissals based on Rule 41(b) of the Federal Rules of

Civil Procedure, and concluding that a dismissal with prejudice

requires findings of contumacious conduct and that lesser

sanctions will not suffice). 

Thus, this action may be dismissed under Rule 41(b) as well

because Plaintiff’s conduct of failing to respond to the Court’s

Order, after previously notifying the Court of his “free world”

address where the Court’s Order was sent and was not returned by

postal authorities, is willful conduct warranting the imposition

of sanctions. In considering the sanctions that will address

this conduct, and in light of the facts that Plaintiff filed

twenty-four actions from July 15, 2009, to December 10, 2009,

while he was a prisoner and that after his release from prison

his situation more than likely is impecunious, a sanction less

than dismissal would not address Plaintiff’s conduct and be

effective. Malautea v. Suzki Motor Co., 987 F.2d 1536 (11th Cir.

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1993) (finding that bad faith and intransigence could not be

remedied by a sanction less than dismissal or default judgment). 

Accordingly, it is recommended that this action be dismissed

without prejudice. 

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 “Statement 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.

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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 22nd day of February, 2010.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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