IN THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

JAMES M. BROADHEAD, :

Plaintiff, :

vs. : CIVIL ACTION 10-0012-WS-C 

NURSE MIXON, et al., :

Defendants. :

REPORT AND RECOMMENDATION

This action was filed by an Alabama state inmate and has been referred to the

undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2 (c)(4) for appropriate

action. It is recommended that this action be dismissed without prejudice for Plaintiff’s failure

to prosecute and to comply with the Court's order. 

Plaintiff did not pay the $350.00 filing fee, or in lieu thereof, file a motion to proceed

without prepayment of fees, when Plaintiff filed his complaint on January 6, 2010 (Doc. 1). 

Plaintiff, therefore, was ORDERED by February 8, 2010, either to pay the filing fee or to

complete and file the Court's form for a motion to proceed without prepayment of fees. Plaintiff

was warned that failure to comply with this order within the prescribed time would result in the

dismissal without prejudice of this action for failure to prosecute and to obey the Court’s order. 

To date, the Court's order dated January 6, 2010, has not been returned to the Court, nor has the

Plaintiff responded in any other manner to the Court's order.

Due to Plaintiff's failure to comply with the Court's order and to prosecute this action,

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2

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, 630-31,

82 S.Ct. 1386, 1389 (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.

2006) (recognizing a district court’s inherent power to enforce orders and provide for the

efficient disposition of litigation); Wilson v. Sargent, 313 F.3d 1315, 1331-32 & n.7 (11th Cir.

2002) (holding that a prisoner’s failure to pay the partial filing fee under § 1915 is a basis for

dismissal); 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 only a dismissal with

prejudice requires findings of contumacious conduct and that lesser sanctions will not suffice). 

The instructions which follow the undersigned’s signature contain important information

regarding objections to the report and recommendation of the Magistrate Judge.

DONE this 25th day of February, 2010.

 s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

Case 1:10-cv-00012-WS-C Document 3 Filed 02/25/10 Page 2 of 3
1 Effective December 1, 2009, the time for filing written objections was extended

to “14 days after being served with a copy of the recommended disposition[.]” Fed.R.Civ.P.

72(b)(2). 

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

(14) 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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