IN THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

ZACHARY CHAPMAN, :

Petitioner, :

vs. : CIVIL ACTION 04-0767-WS-C 

UNITED STATES BUREAU OF PRISONS, :

Respondent. :

REPORT AND RECOMMENDATION

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

Rule 72.2, and is now before the Court for Petitioner's failure to prosecute and to obey the

Court's Order. 

Petitioner, a federal inmate proceeding pro se, filed a petition for habeas relief under 28

U.S.C. § 2241while he was incarcerated in this district in the Mobile County Metro Jail. Since

that filing, Petitioner was transferred to FCI Yazoo City, Mississippi. This Court has jurisdiction

over a § 2241 petition only if the petitioner is confined in this district. Further, a § 2241 petition

is only properly brought after exhaustion of administrative remedies. 

On April 4, 2005 (Doc. 2), inasmuch as Petitioner indicated in the petition that he had not

exhausted his administrative remedies, the Court ordered Petitioner to show cause why his §

2241 petition should not be dismissed for failure to exhaust administrative remedies and/or for

lack of subject matter jurisdiction. If petitioner were to contend that he had exhausted his

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remedies, he was to identify the procedures he used and to file a copy of the decisions made in

the process. Petitioner was warned that the failure to comply with this order within the

prescribed time or to notify the Court of a change in address would result in the dismissal of this

action. The Court’s Order has not been returned to the Court, nor has the Court, to date, heard

from Petitioner since this Order was entered. 

Due to Petitioner's failure to comply with the Court's Order and, upon consideration of

the alternatives 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); Ballard v. Carlson, 882 F.2d 93

(4th Cir. 1989), cert. denied, Ballard v. Volunteers of America, 493 U.S. 1084, 110 S.Ct. 1145,

107 L.Ed.2d 1049 (1990); 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 attached sheet contains important information regarding objections to the Report and

Recommendation.

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DONE this 13th day of March, 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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