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Plaintiff was incarcerated in the Hale County Jail when he

commenced this action by filing his complaint in the United

States District Court for the Northern District of Alabama. 

Subsequently, this action was transferred to this Court.

 IN THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

HENRY JOINER, :

:

Plaintiff, :

 :

vs. : CIVIL ACTION 05-0538-BH-M

 :

CITY OF GREENSBORO, ALABAMA, :

et al., :

 :

Defendants. :

REPORT AND RECOMMENDATION

Plaintiff, who is proceeding pro se, filed a complaint under

42 U.S.C. § 1983 together with a Motion to Proceed Without

Prepayment of Fees (Doc. 8, see attachments 1, 2).1 This action

was referred to the undersigned pursuant to 28 U.S.C. §

636(b)(1)(B) and Local Rule 72.2, is now before the Court for

Plaintiff’s failure to prosecute and to comply with the Court’s

Order. 

On May 30, 2006, Plaintiff was ordered to pay the $250.00

filing fee by June 23, 2006, if he wanted to proceed with the

prosecution of this action. Plaintiff was advised that if he was

unable to pay the amount owed in one, lump-sum payment, Plaintiff

could file a motion to proceed without prepayment of fee by June

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23, 2006. Plaintiff was warned that his failure to comply within

the prescribed time would result in the dismissal of this action

for failure to prosecute and to obey the Court’s Order (Doc. 15). 

The Order was mailed to Plaintiff at 3404 Otis Lane, Apt. D,

Montgomery, Alabama 36108, his last known address. Plaintiff has

not responded, nor has the Order been returned to the Court by

postal authorities. The Court finds that Plaintiff has abandoned

prosecution of this action. 

 Due to Plaintiff's failure to prosecute and to comply with

the Court’s Order, 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 the federal courts'

inherent power to manage their own proceedings authorized the

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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), cert. denied, 510 U. S. 683, 114 S.Ct. 181, 126

L.Ed.2d 140 (1993) (finding that the court's inherent power to

manage proceedings before it permitted the imposition of fines).

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.

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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

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 12th day of July, 2006.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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