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 IN THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

PAULOS MURPHY, :

Petitioner, :

vs. : CIVIL ACTION 05-00353-WS-B

GRANTT CULLIVER, :

Respondent. :

REPORT AND RECOMMENDATION

Petitioner, an Alabama prison inmate proceeding pro se,

filed a petition under 28 U.S.C. § 2254 (Doc. 1). This action

was referred to the undersigned pursuant to 28 U.S.C. §

636(b)(1)(B) and Local Rule 72.2(c)(4) for appropriate action,

and is now before the Court due to Petitioner’s failure to

prosecute and to comply with the Court’s Order. 

Petitioner's petition (Doc. 1) and motion to proceed in

forma pauperis (Doc. 2) were not filed on the Court's current

forms. Thus, on October 14, 2005, the Court entered an Order

(Doc. 3) directing Petitioner to file his petition and motion on

the Court's current forms by November 3, 2005. Petitioner was

advised that if he failed to file his petition using the Court’s

current form for a petition under 28 U.S.C. §2254 and to file

his motion to proceed without prepayment of fees on the court’s

current form, his action would be dismissed without prejudice

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for failure to prosecute and to obey the Court's Order.

Petitioner has not responded to the Court's Order (Doc. 3), nor

has Petitioner's copy of the Order been returned to the Court.

Due to Petitioner'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. 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).

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The attached sheet contains important information regarding

objections to this Report and Recommendation.

DONE this 1st day of December, 2005.

/S/ SONJA F. BIVINS 

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).

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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 the 1st day of December, 2005.

/s/ SONJA F. BIVINS 

UNITED STATES MAGISTRATE JUDGE

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