IN THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

 RIGO FILISSAINT, :

Petitioner, :

 :

vs. : CIVIL ACTION 06-0745-KD-M

 : 

ALBERTO GONZALES, et al., :

 :

Respondents. :

REPORT AND RECOMMENDATION

Petitioner, who is proceeding pro se, filed a petition under

28 § 2241 (Doc. 1). This action, which has been referred to the

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

72.2(c)(4), is now before the Court for Plaintiff’s failure to

prosecute and to comply with the Court’s Order.

 The Court’s Order entered on December 8, 2006, was returned

to the Court on December 15, 2006, with the notation “Return to

Sender Addressee Not at This Location and Refused” (Doc. 4). 

Petitioner was previously advised that it is his responsibility

to advise the Court immediately of any change of address, or he

would suffer the dismissal of this action for failure to

prosecute and to obey the Court’s Order (Doc. 3). As of this

date, Petitioner has not advised the Court of a change in his

address, and there is no current address for him. Thus, the

Court finds that Petitioner has abandoned the prosecution of this

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action.

Due to Petitioner’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 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). 

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 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 ten 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 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

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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 16th day of January, 2007.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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