IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

SAMMY HOWARD, :

Plaintiff, :

vs. : CA 14-0266-WS-C

ALABAMA DEPARTMENT OF :

CORRECTIONS, et al.,

:

Defendants.

REPORT AND RECOMMENDATION

Sammy Howard filed a § 1983 complaint in this Court on June 10, 2014. (Doc. 1.)

The answer and special report of defendants Gwendolyn Givens and the Alabama 

Department of Corrections (see Docs. 15-16) were converted into a motion for summary 

judgment by order dated October 20, 2014 (Doc. 17). Plaintiff was ordered to file his 

response to the motion for summary judgment on or before November 24, 2014 (see id.); 

to date, however, plaintiff has not filed a response (see Docket Sheet). This prisoner 

action now has been referred to the undersigned, in accordance with 28 U.S.C. § 

636(b)(1)(B) and Local Rule 72.2(c)(4), for appropriate action. For the reasons stated 

herein, it is recommended that the Court dismiss this action based upon plaintiff’s 

abandonment of his claims and his failure to prosecute this action by complying with 

the Court’s order dated October 20, 2014 (Doc. 17).

As indicated above, plaintiff filed his § 1983 complaint in this Court on June 10, 

2014 (Doc. 1), and named as defendants therein the Alabama Department of Corrections

(“ADOC”), Gwendolyn Givens, Gary Hetzel, Correctional Officer I Rains, and Jesse 

Walter Bishop (see id.). The Court entered an order directing the Clerk of Court to serve 

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the defendants in accordance with the Court’s standing order dated February 1, 1994 

(Doc. 9) and, to that end, the Clerk requested waiver of service from the defendants 

(Doc. 10). Gwendolyn Givens executed a waiver of service (Doc. 11) but the waivers of 

service as to the remaining individual defendants, that is, COI Rains, Gary Hetzel, and 

Jesse Walter Bishop, were returned to the Court as unexecuted (Doc. 12). Plaintiff has 

not provided the Court with addresses for Rains, Hetzel, and Bishop (see Docs. 13-14) 

and those defendants have never been served with process (see Docket Sheet). 

On October 17, 2014, defendants Givens and the ADOC filed an answer and 

special report (Docs. 15-16) and those pleadings were converted into a motion for 

summary judgment by order dated October 20, 2014 (Doc. 17). The conversion order 

instructed plaintiff to file his response to the motion for summary judgment by not later 

than November 24, 2014 (see id. at 1 & 3). By that same date, plaintiff was expected “to 

inform this Court in writing” whether he desired “to continue the litigation of this 

action.” (Id. at 3.) Howard was specifically informed that any “[f]ailure to respond by 

the above-stated date will be considered by the Court as an abandonment of the 

prosecution of this case by Plaintiff and this case will be dismissed.” (Id.) To date, 

petitioner has not filed a response to the motion for summary judgment filed by 

Gwendolyn Givens and the ADOC or otherwise complied with this Court’s order

instructing him to file a response by November 24, 2014. (See Docket Sheet.)

A plaintiff’s failure to respond to a motion for summary judgment establishes an 

abandonment of all claims asserted by plaintiff against the moving parties. Compare 

James v. City of Birmingham, Alabama, 926 F.Supp.2d 1260, 1265 (N.D. Ala. 2013) (“By not 

responding [to the motion for summary judgment], plaintiff abandoned his § 1983 

claims against the City.”) with Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 971 

n.36 (11th Cir. 2008) (“[Plaintiff] did not defend the claim on summary judgment; he 

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thus abandoned it.”). Moreover, an action may be dismissed where the plaintiff fails to 

prosecute it or if he fails to comply with any court order. Fed.R.Civ.P. 41(b); see also Link 

v. Wabash Railroad Co., 370 U.S. 626, 630-631, 82 S.Ct. 1386, 1388-1389, 8 L.Ed.2d 734 

(1962) (holding district courts have the power to sua sponte dismiss a cause of action for 

failure to prosecute); World Thrust Films, Inc. v. International Family Entertainment, Inc., 41 

F.3d 1454, 1456 (11th Cir. 1995) (“‘A district court has authority under Federal Rule[] of 

Civil Procedure 41(b) to dismiss actions for failure to comply with local rules.’”).

In this case, plaintiff has not filed the requisite response in opposition to the 

motion for summary judgment filed by defendants Givens and the ADOC nor has he 

otherwise complied with the directives set forth in the Court’s order dated October 20, 

2014. Therefore, it is recommended that the Court DISMISS WITHOUT PREJUDICE

Howard’s § 1983 action.

1 See Blair v. Riley, 2009 WL 69235, *1 (M.D. Ala. Jan. 8, 2009).

NOTICE OF RIGHT TO FILE OBJECTIONS

A copy of this report and recommendation shall be served on all parties in the 

manner provided by law. Any party who objects to this recommendation or anything in 

it must, within fourteen (14) days of the date of service of this document, file specific 

written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); FED.R.CIV.P. 

72(b); S.D.ALA. L.R. 72.4. The parties should note that under Eleventh Circuit precedent, 

“the failure to object limits the scope of [] appellate review to plain error review of the 

magistrate judge’s factual findings.” Dupree v. Warden, 715 F.3d 1295, 1300 (11th Cir. 

2013) (emphasis in original). In order to be specific, an objection must identify the 

 1 Howard’s entire action is due to be dismissed without prejudice inasmuch as 

service has not been perfected on defendants Rains, Hetzel and Bishop and the two defendants 

who have been served (Givens and the ADOC) are, for the reasons set forth herein, entitled to a 

dismissal of plaintiff’s lawsuit. 

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specific finding or recommendation to which objection is made, state the basis for the 

objection, and specify the place in the Magistrate Judge’s report and recommendation 

where the disputed determination is found. An objection that merely incorporates by 

reference or refers to the briefing before the Magistrate Judge is not specific.

DONE this the 9th day of December, 2014.

s/WILLIAM E. CASSADY

UNITED STATES MAGISTRATE JUDGE

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