IN THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

SAMUEL L. NELSON, :

 :

Petitioner, :

 :

vs. : CIVIL ACTION 09-0812-KD-M

:

WARDEN OLIVER, :

 :

Respondent. :

REPORT AND RECOMMENDATION

Petitioner, a Mobile County prison inmate proceeding pro se,

filed a Petition for Writ of Mandamus(Doc. 1). This action,

which has been referred to the undersigned pursuant to 28 U.S.C.

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

for Petitioner’s failure to prosecute and to obey the Court's

Order. 

Upon review of the Petition for Writ of Mandamus, Petitioner

was ordered to complete and file this Court’s forms for a

petition under 28 U.S.C. § 2254 and for a motion to proceed

without prepayment of fees, or in lieu thereof, pay the $5.00

filing fee by January 22, 2010 (Doc. 2). The Order dated

December 23, 2009, was mailed to Petitioner at Mobile County

Jail, P. O. Box 104, Mobile, Alabama, 36601, his last know

address. Petitioner was warned that his failure to comply with

the Order within the prescribed time would result in the

dismissal of his action. The Court’s Order dated December 23,

Case 1:09-cv-00812-KD-M Document 3 Filed 02/01/10 Page 1 of 4
2

2009, has not been returned to the Court, nor has the Court, to

date, heard from Petitioner since this Order was entered. The

Court finds that Petitioner has abandoned prosecution of this

action. 

Due to Petitioner's failure to comply with the Court's

Order, and upon consideration of the alternatives 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. 1983);

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. 1993)(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,

Case 1:09-cv-00812-KD-M Document 3 Filed 02/01/10 Page 2 of 4
3

126 L.Ed.2d 140 (1993).

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 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 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

Case 1:09-cv-00812-KD-M Document 3 Filed 02/01/10 Page 3 of 4
4

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 1st day of February, 2010.

 

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

Case 1:09-cv-00812-KD-M Document 3 Filed 02/01/10 Page 4 of 4