IN THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

SHARON D. REED, :

Plaintiff, :

vs. : CIVIL ACTION 05-0413-WS-C 

JO ANNE B. BARNHART, :

Commissioner of Social Security,

Defendant. :

REPORT AND RECOMMENDATION

This action was filed by a pro se Plaintiff and has been referred to the undersigned pursuant to

28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2 (c)(1) & (3) 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. 

The Court reviewed Plaintiff's complaint and motion to proceed without prepayment of fees

(Docs. 1, 2) and found that while Plaintiff is unemployed and had no cash savings, she and her children

received food stamps as well as charitable contributions to help pay for clothing and her monthly

utilities. However, the motion did not reveal the amount of monthly food stamps received or the

amount of charitable contributions; nor did the motion reveal the amount of her monthly utility bills and

clothing expense. In fact, the motion revealed no financial debts and the sole obligation of $30.00

rental payment each month. On July 26, 2005, the Court ordered Plaintiff by August 29, 2005, to

amend her motion with evidence which establishes her entitlement to proceed without the prepayment

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of the filing fee. As of this date, Plaintiff has not responded in any manner to the Court's order.

Due to Plaintiff's failure to comply with the Court's order 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 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. 1983); 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. 1993)(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 Clerk is ORDERED to serve a copy of this Report and Recommendation on Plaintiff by

certified mail.

The attached sheet contains important information regarding objections to this Report and

Recommendation.

DONE this 27th day of September, 2005.

s/WILLIAM E. CASSADY 

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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.

DONE this day of , 20 .

s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

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