1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION 

JAMES M. BROADHEAD, : 

 

Plaintiff, : 

vs. : CIVIL ACTION NO. 10-00129-KD-B 

TERESA HEINZ, et al., : 

Defendants. : 

 REPORT AND RECOMMENDATION

Plaintiff, an Alabama prison inmate proceeding pro se,

filed the instant case alleging violations under 42 U.S.C. ' 1983 

(Doc. 1). This case was referred to the undersigned Magistrate 

Judge pursuant to 28 U.S.C. ' 636(b)(1)(B) and Local Rule 

72.2(c)(4) for appropriate action. Because Plaintiff has failed 

to prosecute and to comply with the Court=s Order dated June 9, 

2010 (Doc. 9), it is recommended that this action be dismissed 

without prejudice. 

 The Court reviewed Plaintiff's Complaint and a hand-written 

amendment (Docs 1, 6) pursuant to U.S.C. § 1915(e)(2)(B), and 

determined that the Complaint and amendment contains claims that 

are not related to each other and identifies Defendants in a 

confusing manner. As a result, Plaintiff was ordered to 

complete and file an amended complaint on the Court’s form for 

42 U.S.C. ' 1983 actions by July 9, 2010.(Doc. 9). Plaintiff was 

Case 1:10-cv-00129-KD-B Document 10 Filed 08/16/10 Page 1 of 4
2 

cautioned that failure to comply with the Order within the 

prescribed time or to notify the Court of a change in address 

would result in the dismissal of this action for failure to 

prosecute and to obey the Court’s Order. The Court also 

directed the Clerk to forward to Plaintiff a copy of the 

requisite forms along with a copy of the Order. To date, 

Plaintiff has not responded in any manner to the Court's Order 

(Doc. 9), nor has his copy of the Order and forms been returned 

to the Court. 

Due to Plaintiff'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 it appears that 

Plaintiff has abandoned this action, and 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 

Case 1:10-cv-00129-KD-B Document 10 Filed 08/16/10 Page 2 of 4
3 

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. 

DONE this 13th day of August, 2010. 

 

______/S/ SONJA F. BIVINS_______ 

 UNITED STATES MAGISTRATE JUDGE 

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: 

Case 1:10-cv-00129-KD-B Document 10 Filed 08/16/10 Page 3 of 4
4 

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 

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. 

 /S/ SONJA F. BIVINS_______ 

 UNITED STATES MAGISTRATE JUDGE

Case 1:10-cv-00129-KD-B Document 10 Filed 08/16/10 Page 4 of 4