IN THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

BOYD E. HORTON, :

 :

Plaintiff, :

 :

vs. : CIVIL ACTION 05-0659-BH-M

 :

JACK TILLMAN, et al., :

 : 

Defendants. :

 

REPORT AND RECOMMENDATION

Plaintiff, a Mobile County prison inmate proceeding pro se,

filed a complaint under 42 U.S.C. § 1983 (Doc. 1), together with a

Motion to Proceed Without Prepayment of Fees (Doc. 2). This

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

636(b)(1)(B) and Local Rule 72.2(c)(4), and is now before the

Court for Plaintiff’s failure to prosecute and obey the orders of

the Court. 

On December 8, 2005, after review of Plaintiff's Motion to

Proceed Without Prepayment of Fees, the Court ordered Plaintiff to

pay a $1.37 partial filing fee within twenty days (Doc. 3). 

Plaintiff was warned that his failure to comply with the Order

within the prescribed time would result in the dismissal of his

action. Plaintiff has not paid the partial filing fee, nor has

his copy of the Court’s Order been returned to the Court.

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

and to prosecute this action by paying the partial filing fee, and

upon consideration of the alternatives that are available to the

Court, it is recommended that this action be dismissed without

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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). 

The attached sheet contains important information regarding

objections to this Report and Recommendation.

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

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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 17th day of January, 2006.

S/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE 

 

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