IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

DUSTIN MCLELLAN, *

*

 Plaintiff, *

*

vs. * CIVIL ACTION NO.15-00161-CG-B

*

MONICA JOHNSON, et al., *

*

 Defendants. *

REPORT AND RECOMMENDATION

This action is before the Court on review. When Plaintiff filed 

this action seeking relief under 42 U.S.C. § 1983, he listed his 

address as Limestone Correctional Facility, 28779 Nick Davis Road, 

Harvest, Alabama 35749. (Doc. 1). Subsequent thereto, Plaintiff 

requested and was granted permission to proceed in forma pauperis. 

(Docs. 5, 6). Plaintiff was directed to pay a $25.00 partial filing 

fee, and was advised that it is his responsibility to keep the court 

informed of his current address, and that if he failed to do so, this 

action would be dismissed for failure to prosecute and obey the Court’s 

order. (Doc. 6). Plaintiff paid the partial filing fee as directed, 

and on June 29, 2015, he filed a Notice of Change of Address (Docs. 

7, 9). In the notice, he lists his new address as Mobile Metro Jail, 

P.O. Box 104, Mobile, AL, 36601. 

On July 2, 2015, the Court sent a collection order to the new 

address provided by Plaintiff; however, it was returned to the Court 

with the notation “RETURN TO SENDER, REASON CHECKED - Moved.” (Doc. 

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10). A check of the Alabama Department of Corrections’ website

indicates that Plaintiff is no longer in the custody of ADOC. Since 

Plaintiff is no longer in the custody of ADOC, and because he has 

neglected to keep the court appraised of his current address, the 

Court has no means by which to communicate with Plaintiff, and surmises 

that he is no longer interested in pursuing this action.

In light of the above, 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 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); Blunt v. U. S. Tobacco 

Co., 856 F.2d 192 (6th Cir. 1988) (unpublished); 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) (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. 1993) (the court’s 

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inherent power to manage actions before it permitted the imposition 

of fines), cert. denied, 510 U.S. 683, 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 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. GenLR 72(c). The parties should note that under 

Eleventh Circuit Rule 3-1, “[a] party failing to object to a 

magistrate judge's findings or recommendations contained in a report 

and recommendation in accordance with the provisions of 28 U.S.C. 

§ 636(b)(1) waives the right to challenge on appeal the district 

court's order based on unobjected-to factual and legal conclusions 

if the party was informed of the time period for objecting and the 

consequences on appeal for failing to object. In the absence of a 

proper objection, however, the court may review on appeal for plain 

error if necessary in the interests of justice.” 11th Cir. R. 3-1.

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. 

Case 1:15-cv-00161-CG-B Document 11 Filed 10/08/15 Page 3 of 4
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An objection that merely incorporates by reference or refers to the 

briefing before the Magistrate Judge is not specific. 

DONE this 8th day of October, 2015.

 /S/SONJA F. BIVINS 

UNITED STATES MAGISTRATE JUDGE

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