IN THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

JOE HENRY SCOTT, III, :

Plaintiff, :

vs. : CIVIL ACTION 09-0709-WS-C 

CENTRAL RECORDS AND REVIEW :

BOARD,

Defendant. :

REPORT AND RECOMMENDATION

On October 28, 2009, Plaintiff, while incarcerated in Fountain Correctional Facility, filed

a complaint (Doc. 1). Plaintiff did not pay the required filing fee of $350.00, nor did he file a

motion to proceed without prepayment of fees. On March 15, 2010, the file was referred for

review since there had been no action taken and there had been no communication from Plaintiff

since the filing of this action, even until this date. 

Through a review of other actions filed by plaintiff that are pending before this Court, it

was discovered that, on or about January 6, 2010, plaintiff filed notices of a change in address in

each of those actions, but had not filed a change of address in the above action. The change in

address noted in those other cases indicate that plaintiff is no longer incarcerated. Because

plaintiff filed this action while he was a prisoner, but is now no longer incarcerated, he is

obligated to the pay the entire $350.00 filing fee in this action. Gay v. Texas Dept. of Corrections

State Jail Div., 117 F.3d 240, 242 (5th Cir. 1997); 28 U.S.C. § 1915(b)(1).

Inasmuch as it appeared to the Court that plaintiff, due to inactivity, no longer wished to

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proceed with this action, he was ordered, on March 15, 2010 (Doc. 2), to inform the Court, not

later than April 20, 2010, if he still wished to proceed with this action. Plaintiff was informed

that if the Court did not hear from him by that date, the Court would assume that plaintiff no

longer wished to pursue this action, and it would be dismissed, without prejudice, due to his

failure to prosecute. However, if plaintiff wished to pursue this action, he was ordered to either

pay the $350.00 filing fee or to file a Motion to Proceed Without Prepayment of Fees by April

20, 2010. Plaintiff was warned that the failure to comply with this order within the prescribed

time would result in the dismissal of this action for failure to prosecute and to comply with the

Court’s order. Plaintiff has not paid the $350.00 filing fee, has not filed a motion to proceed

without prepayment of fees, nor has he otherwise responded to the Court’s order of March 15,

2010.

Due to plaintiff's failure to comply with the Court’s order and to prosecute this action, the

undersigned recommends that the Court, through its inherent powers, dismiss this action 

without prejudice. Link v. Wabash R.R., 370 U.S. 626, 630-31, 82 S.Ct. 1386, 1389 (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. 2006) (recognizing a

district court’s inherent power to enforce orders and provide for the efficient disposition of

litigation); Wilson v. Sargent, 313 F.3d 1315, 1331-32 & n.7 (11th Cir. 2002) (holding that a

prisoner’s failure to pay the partial filing fee under § 1915 is a basis for dismissal); 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 power and dismissals based on Rule 41(b) of the

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Federal Rules of Civil Procedure, and concluding that only a dismissal with prejudice requires

findings of contumacious conduct and that lesser sanctions will not suffice). 

In the present action, if plaintiff disputes the finding of failure to pay the filing fee and

wants to proceed with the litigation of his action, he shall set forth in an objection to the report

and recommendation the reasons for his failure to pay. Wilson, 414 F.3d at 1320 (citing to

Hatchet v. Nettles, 201 F.3d 651, 654 (5th Cir. 2000) (finding that an objection to a

recommendation is an acceptable means to ascertain the steps taken by a prisoner to comply with

the order to a pay partial filing fee)). 

The instructions which follow the undersigned’s signature contain important information

regarding objections to the report and recommendation of the Magistrate Judge.

` DONE this the 28th day of April 2010.

 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

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 “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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