IN THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

CARL E. ADAMS, :

Plaintiff, :

vs. : CIVIL ACTION 05-00317-CG-B

MARENGO COUNTY JAIL, :

Defendant. :

REPORT AND RECOMMENDATION

Plaintiff, who is proceeding pro se, filed the instant

action alleging violations under 42 U.S.C. § 1983 (Doc. 1),

along with a Motion to Proceed Without Prepayment of Fees (Doc.

2). 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 Order dated October 14,

2005, it is recommended that this action be dismissed without

prejudice. 

Plaintiff filed this Section 1983 action while incarcerated

at Marengo County Jail (Doc. 1). Following a review of

Plaintiff’s Motion to Proceed Without Prepayment of Fees,

Plaintiff’s Motion was denied without prejudice, and he was

ordered to re-file his motion with the statutorily required copy

of the institutional record of his inmate account reflecting

transactions in his account for the six-month period immediately

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preceding the filing of his complaint, along with a certificate

completed by an authorized prison official, by July 6, 2005.

(Doc. 3). Additionally, the Clerk was directed to send

Plaintiff the requisite form for such motion. 

On June 20, 2005, the Court’s June 8, 2005 Order instructing

Plaintiff to re-file his motion, and the form for the motion,

were returned to the Court undelivered. (Doc. 4). Upon

contacting the Alabama Department of Corrections, the Court

discovered that Plaintiff was no longer incarcerated at the

Marengo County Jail, but was instead incarcerated at Decatur

Work Release. (Doc. 4). Accordingly, by Order dated October 14,

2005 (Doc. 5), the Court extended the time for complying with

the Court’s June 8, 2005 Order to November 3, 2005, and directed

the Clerk to send to Plaintiff a copy of both the Court’s June

8, 2005 Order (Doc. 3), and a copy of the October 14, 2005 Order

(Doc.5), along with a form for a motion to proceed without

prepayment of fees, at his new address with Decatur Work

Release. 

The above-referenced Orders have not been returned to the

Court, and to date, Plaintiff has not filed a motion to proceed

without prepayment of fees, sought an extension, or paid the

$250.00 filing fee. 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

Case 2:05-cv-00317-CG-B Document 6 Filed 11/08/05 Page 2 of 5
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).

The attached sheet contains important information regarding

objections to this Report and Recommendation.

DONE this 8th day of November, 2005.

 /s/SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

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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.

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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.

S/ SONJA F. BIVINS 

UNITED STATES MAGISTRATE JUDGE

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