IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

ERIC BLANDING, :

Plaintiff, :

vs. : CIVIL ACTION 09-00738-CG-B

RICHARD ALLEN, 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 Orders dated December 11, 2009 and

January 5, 2010, it is recommended that this action be dismissed

without prejudice. 

Plaintiff's complaint (Doc. 1) was not filed on the Court’s

form for action alleging violations of 42 U.S.C. § 1983.

Accordingly, on December 11, 2009, this Court issued an Order

directing Plaintiff to re-file his complaint on this Court’s

required form by January 11, 2010. Plaintiff was also directed to

file a motion to proceed without prepayment of fees on the Court's

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Plaintiff was also advised that in lieu of the motion to

proceed without payment of fees, he could pay the $350.00 filing

fee by (Doc. 2).

current form by January 11, 20101 (Doc. 2). On December 18, 2009,

Plaintiff’s Copy of the Court’s Order was returned as

undeliverable. As a result, the Court accessed the ADOC website

and learned that Plaintiff is now incarcerated at St. Clair

Correctional Facility. Accordingly, on January 5, 2010, the Court

issued an Order directing the Clerk to resend the Court's previous

Order to Plaintiff at his current address. In addition, the Court

extended the time for Plaintiff to re-file his Complaint and his

motion to proceed without prepayment of fees to February 2, 2010.

Plaintiff was advised that if failed to comply with the Court’s

Orders, his action would be dismissed without prejudice 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. A review of the docket

reflects that to date, Plaintiff has not responded in any manner to

the Court's Orders (Doc. 2,4), nor has his copy of the Orders 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 no other lesser

sanction will suffice. Link v. Wabash R. R., 370 U.S. 626, 630, 82

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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.

DONE this 12th day of February, 2010.

 /s/SONJA F. BIVINS 

UNITED STATES MAGISTRATE JUDGE

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The Court’s Local rules are being amended to reflect the

new computations of time as set out in the amendments to the

Federal Rules of Practice and Procedure, effective December 1,

2009.

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 days2 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).

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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

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