IN THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

JOHN FIELDS, :

Plaintiff, :

vs. : CIVIL ACTION 05-0673-KD-C

RAY FARMER, et al., :

Defendants. :

REPORT AND RECOMMENDATION

The Court's Order Converting the Special Report to a Motion for Summary Judgment and

Taking the Motion for Summary Judgment Under Submission, dated May 24, 2006 (Doc. 29),

was sent to Plaintiff at Warren Correctional Facility, P. O. Box 120, Lebanon, Ohio 45036,

which is the last address that Plaintiff provided the Court, and was returned to the Court with the

notation "RTS Paroled.” Plaintiff was warned in prior orders that his failure to comply with any

of the Court's orders within a prescribed time or his failure to advise the Court immediately of a

change in address would result in dismissal of his action for failure to prosecute. As of this date,

Plaintiff has failed to notify the Court of his release status, advise the Court of any change in

address, or if it is intentions to continue the prosecution of this action. 

Due to Plaintiff's failure to prosecute, the Court concludes that Plaintiff has abandoned

the prosecution of this action. 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 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

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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); Blunt v. U. S.

Tobacco Co., 856 F.2d 192 (6th Cir. 1988) (unpublished); Goforth v. Owens, 766 F.2d 1533,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) (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. 1993) (the court's inherent power to manage actions before it permitted the imposition of

fines), cert. denied, 510 U. S. 683, 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 18th day of September, 2006.

s/WILLIAM E. CASSADY 

 UNITED STATES MAGISTRATE JUDGE

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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 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.

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