IN THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

MICHAEL SMITH, )

 )

Plaintiff, )

 )

vs. ) CIVIL ACTION 05-0426-BH-D

 )

TOM TATE, et al., )

 )

Defendants. )

REPORT AND RECOMMENDATION

Plaintiff, an Alabama prison inmate proceeding pro se, filed a complaint under 42 U.S.C. §

1983 (Doc. 1), together with a motion to proceed without prepayment of fees (Doc. 4). This action

was referred to the undersigned pursuant to 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. 

On October 12, 2005, the plaintiff was ordered to pay the $250.00 filing fee by November 3,

2005, or file a new motion to proceed without prepayment of fees, if he wishes to proceed with the

prosecution of this action (Doc. 5). Plaintiff was warned that his failure to comply with the order within

the prescribed time would result in a recommendation of dismissal of his action. Plaintiff has not paid

the partial filing fee, nor has his copy of the Court’s order been returned to the Court.

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, 82 S.Ct.

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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 and ORDERED this 17TH day of November, 2005.

/s/ Kristi K. DuBose 

KRISTI K. DuBOSE

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). 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, in part, 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. Opposing party’s response to the objection. Any opposing party may submit a brief

opposing the objection within ten (10) days of being served with a copy of the statement of objection. 

Fed. R. Civ. P. 72; SD ALA LR 72.4(b). 

3. 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.

KRISTI K. DuBOSE

UNITED STATES MAGISTRATE JUDGE

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