IN THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

TERRELL MICKELS, :

: 

Plaintiff, :

 :

vs. : CIVIL ACTION 15-00173-WS-M 

: 

ADAM OVERSTREET, et al., :

:

 Defendants. : 

 

REPORT AND RECOMMENDATION

Plaintiff, a federal prison inmate proceeding pro se, filed 

a complaint under 42 U.S.C. § 1983 (Doc. 1). This action was 

referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) 

and Local Rule 72.2, and is before the Court for Plaintiff's 

failure to prosecute and to comply with the Court’s Order. 

On April 9, 2015, Plaintiff was ordered to file this 

Court’s forms for a complaint under 42 U.S.C. § 1983 and for a

motion to proceed without prepayment of fees not later than May 

11, 2015 (Doc. 3). On April 24, 2015, Plaintiff re-filed his 

amended 1983 complaint and Motion for Leave to Proceed Without 

Prepayment of Fees (Docs. 4, 5). Plaintiff motion was 

incomplete, whereas he did not have an authorized officer at his 

institution complete the certification of the balance in his 

account. Plaintiff’s motion was denied on May 15, 2015, with

leave to re-file his motion not later than June 15, 2015 (Doc. 

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6). On June 5, 2015, Plaintiff re-filed his Motion for Leave to 

Proceed Without Prepayment of Fees (Doc. 7). Upon review of 

Plaintiff’s motion, Plaintiff again failed to have an authorized 

officer at his institution complete the certification of the 

balance in his account. Also, upon review of Plaintiff’s 

amended 1983 complaint filed on April 24, 2015, Plaintiff did 

not complete the form and pages 2, 5 and 6 were missing from the 

form (Doc. 4). 

By Order dated June 16, 2016, Plaintiff was given another 

opportunity to re-file his motion to proceed without prepayment 

of fees and an amended 1983 complaint not later than July 16, 

2015. Plaintiff has been warned that his failure to comply with 

the Order within the prescribed time would result in the 

dismissal of his action for failure to prosecute and to obey the 

Court’s Order (Docs. 3, 6, 8). The Order was mailed to 

Plaintiff at USP Canaan, P. O. Box 300, Waymart, Pennsylvania 

18472, his last known address. To date, Plaintiff has not 

responded to the Court’s Order, nor has the Order been returned 

as undeliverable. The Court finds that Plaintiff has abandoned 

prosecution of this action.

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 

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that this action be dismissed without prejudice pursuant to Rule 

41(b) of the Federal Rules of Civil Procedure for failure to 

prosecute and to obey the Court's Order, as no other lesser 

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

82 S.Ct. 1386, 1388-89, 8 L.Ed.2d 734, 738 (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).

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 

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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. 

In order to be specific, an objection must identify the 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 29th day of July, 2015.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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