IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

DAVID KILLINGSWORTH, :

Petitioner, :

vs. : CIVIL ACTION NO. 15-00182-CB-B

STATE OF ALABAMA, :

Respondent. :

REPORT AND RECOMMENDATION

Petitioner David Killingsworth filed a petition seeking habeas 

corpus relief under 28 U.S.C. § 2254, and an in forma pauperis 

declaration. (Docs. 1, 2). Because Killingsworth has failed to 

prosecute and to comply with the Court’s order dated April 20, 2015

(Doc. 3), it is recommended that this action be dismissed without 

prejudice.1

Killingsworth’s habeas petition and declaration are not on the 

forms required by this Court. Accordingly, in an order entered on 

April 20, 2015 (Doc. 3), this Court directed Killingsworth to refile 

his petition and declaration on the forms required by this court by 

May 7, 2015. Killingsworth was further advised that in lieu of filing 

a motion to proceed without prepayment of fees, he could pay the $5 

filing fee by May 7, 2015 (Doc. 3). Killingsworth was expressly 

 

1 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.

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advised that if he elected not to refile on the Court’s current forms 

for a petition under 28 U.S.C. § 2254 and a motion to proceed without 

prepayment of fees, or in lieu thereof, pay the required $5.00 filing 

fee, this action would be dismissed without prejudice for failure 

to prosecute and to obey the Court's order. (Id.) The Court also 

directed the Clerk to forward to Killingsworth a copy of the requisite 

forms along with a copy of the order. To date, Killingsworth has not 

responded in any manner to the Court's order, nor has his copy of 

the order and forms been returned to the Court. 

Due to Killingsworth’s failure to comply with the Court's April 

20, 2015 order(Doc. 3), and upon consideration of the alternatives 

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); Ballard v. Carlson, 882 F.2d 

93 (4th Cir. 1989), cert. denied, Ballard v. Volunteers of America, 

493 U.S. 1084, 110 S.Ct. 1145, 107 L.Ed.2d 1049 (1990); 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. 1983); Jones v. Graham, 709 

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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. 

1993)(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 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. The parties should note that under 

Eleventh Circuit precedent, “the failure to object limits the scope 

of [] appellate review to plain error review of the magistrate judge’s 

factual findings.” Dupree v. Warden, Attorney General, State of 

Alabama, 715 F.3d 1295, 1300 (11th Cir. 2011). 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 

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objection that merely incorporates by reference or refers to the 

briefing before the Magistrate Judge is not specific.

DONE this the 24th day of August, 2015.

 /S/ SONJA F. BIVINS 

UNITED STATES MAGISTRATE JUDGE

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