IN THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

RAMON M. TORRES, :

 :

Petitioner, :

 :

vs. : CIVIL ACTION 06-0464-WS-M 

 :

WARDEN BILL BATEMAN, et al., :

 :

Respondents. :

REPORT AND RECOMMENDATION

Petitioner, a prison inmate proceeding pro se, filed a

petition under 28 U.S.C. § 2241 together with a Motion for Leave

to Proceed in Forma Pauperis (Docs. 1, 2). This action was

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

Local Rule 72.2, and is now before the Court for Petitioner's

failure to prosecute and to obey the Court’s Order.

On September 20, 2006, Petitioner was ordered to either pay

the $5.00 filing fee or file this Court’s form for a motion to

proceed without prepayment of fees by October 10, 2006 (Doc. 4). 

Petitioner was warned that his failure to comply with the Order

within the prescribed time and to notify the Court of a change in

his address would result in the dismissal of his action. On

September 25, 2006, the Court’s Order dated August 22, 2006 (Doc.

2), was returned to the Court as undeliverable (Doc. 6). The

Order was re-mailed to Petitioner at his new address. On

September 28, 2006, the Court’s Order dated September 20, 2006

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(Doc. 4) was also returned to the Court as undeliverable (Doc.

7). 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. 4). 

Petitioner has not so advised the Court and there is no current

address for him. The Court finds that Petitioner has abandoned

prosecution of this action. 

Due to Petitioner's failure to comply with the Court's

Order, 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);

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 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

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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).

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 4th day of October, 2006.

 

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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