IN THE UNITED STATES DISTRICT COURT FOR THE 

 SOUTHERN DISTRICT OF ALABAMA 

 SOUTHERN DIVISION 

JENISE BROCKS, : 

 : 

Plaintiff, : 

vs. : CIVIL ACTION 10-0004-WS-M 

 : 

FARMERS INSURANCE, et al., : 

 : 

Defendants. : 

 

 REPORT AND RECOMMENDATION

Plaintiff, who is proceeding pro se, filed a complaint (Doc. 

1). This action was referred to the undersigned pursuant to 28 

U.S.C. ' 636(b)(1)(A) and Local Rule 72.2(d), and is now before the 

Court for Plaintiff=s failure to prosecute and to comply with the 

Court=s Order. 

 On February 11, 2010, Plaintiff's Motion to Proceed Without 

Prepayment of Fees (Doc. 6), was denied. Because Plaintiff was 

employed and based on other information in the motion, Plaintiff was 

ordered to pay the $350.00 filing fee in three payments so as to not 

deprived her of the basic necessities of life. The first payment 

of $116.66 was due by March 12, 2010. The second payment of $116.67 

was due by April 13, 2010. The third payment of $116.67 was due by 

May 13, 2010 (Doc. 7). Plaintiff was warned that her failure to 

comply with the Order within the prescribed time, which included the 

missing of just one payment, would result in the dismissal of her 

Case 1:10-cv-00004-WS-M Document 9 Filed 07/29/10 Page 1 of 4
2 

action for failure to prosecute and obey the Court=s Order. 

On March 11, 2010, Plaintiff paid the first installment of 

$116.66 (Doc. 8). As of this date, Plaintiff has not made any 

additional payments, nor has she otherwise responded to the Court's 

Order. The Court finds that Plaintiff has abandoned prosecution of 

this action. 

 Due to Plaintiff's failure to comply with the Court's Order and 

to prosecute this action by not making a $116.67 payment for April 

13, 2010, and for May 13, 2010, and upon consideration of the 

alternatives that are available to the Court, it is recommended that, 

through the Court’s inherent powers, this action be dismissed without 

prejudice. Link v. Wabash R.R., 370 U.S. 626, 630-31, 82 S.Ct. 1386, 

1389, 8 L.Ed.2d 734 (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.) (The court “has the 

inherent ability to dismiss a claim in light of its authority to 

enforce its orders and provide for the efficient disposition of 

litigation.”), cert. denied, 549 U.S. 1228 (2007); 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 

Case 1:10-cv-00004-WS-M Document 9 Filed 07/29/10 Page 2 of 4
3 

power and noting cases where this type of dismissal has been conflated 

with a dismissal under Rule 41(b) of the Federal Rules of Civil 

Procedure). Plaintiff is advised that the dismissal of this action 

will effectively operate as a dismissal with prejudice because she 

will not be able to re-file a viable complaint as the t window of 

the time for filing her complaint has expired. See Dismissal and 

Notice of Rights, dated November 30, 2009 (Doc. 1 at 4). 

 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 fourteen 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 AStatement 

of Objection to Magistrate Judge=s Recommendation@ within 

fourteen 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 

Case 1:10-cv-00004-WS-M Document 9 Filed 07/29/10 Page 3 of 4
4 

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 29th day of July, 2010. 

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE 

 

Case 1:10-cv-00004-WS-M Document 9 Filed 07/29/10 Page 4 of 4