IN THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

ROBERT HAWES, :

: 

Plaintiff, :

 :

vs. : CIVIL ACTION 16-0015-WS-M 

: 

CAPT. MCCOY, et al., :

:

 Defendants. : 

 

REPORT AND RECOMMENDATION

Plaintiff, an Alabama prison inmate proceeding pro se and 

in forma pauperis, filed a Complaint under 42 U.S.C. § 1983.

This action has been referred to the undersigned pursuant for 

appropriate action pursuant to 28 U.S.C. § 636(b)(1)(B) and S.D. 

Ala. Gen.LR 72(a)(2)(R), and is before the Court for Plaintiff’s 

failure to comply with the Court’s Order and to prosecute this 

action.

On April 6, 2016, Plaintiff was ordered to complete and 

file this Court’s form for a motion to proceed without 

prepayment of fees not later than May 6, 2016 (Doc. 2). 

Plaintiff was warned that his failure to comply with the Court’s 

Order would result in dismissal of this action for failure to 

prosecute and to obey the Court’s Order (Doc. 2). The Order and 

form was mailed to Plaintiff at Fountain Correctional Facility, 

Fountain 3800, Atmore, Alabama 36503, his last known address. 

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To date, Plaintiff has not responded to the Court’s Order, nor 

has the Order been returned as undeliverable. Thus, the Court 

finds that Plaintiff has abandoned prosecution of this action.

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 Court, it is recommended 

that this action be dismissed without prejudice pursuant to Rule 

41(b) of the Federal Rules of Civil Procedure for failure to 

prosecute and to obey the Court's Order, as no other lesser 

sanction will suffice. Link v. Wabash R. R., 370 U.S. 626, 630, 

82 S.Ct. 1386, 1388-89, 8 L.Ed.2d 734, 738 (1962) (interpreting 

Rule 41(b) not to restrict the court's inherent authority to 

dismiss sua sponte an action for lack of prosecution); see also

World Thrust Films, Inc. v. International Family Entm’t, Inc., 

41 F.3d 1454, 1456-57 (11th Cir. 1995) (requesting the court to 

consider lesser sanctions); Mingo v. Sugar Cane Growers Co-op, 

864 F.2d 101, 102 (11th Cir. 1989)(Same); Goforth v. Owens, 766 

F.2d 1533, 1535 (11th Cir. 1985)(Same); Jones v. Graham, 709 

F.2d 1457, 1458 (11th Cir. 1983)(Same); Blunt v. U.S. Tobacco 

Co., 856 F.2d 192 (6th Cir.1988) (Unpublished); Accord Chambers 

v. NASCO, Inc., 501 U.S. 32, 45-46 (1991)(ruling that federal 

courts' inherent power to manage their own proceedings 

authorized the imposition of attorney's fees and related 

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expenses as a sanction); Malautea v. Suzuki Motor Co., 987 F.2d 

1536, 1545-46 (11th Cir.)(finding that the courts’ inherent 

power to manage actions before it permitted the imposition of 

fines), cert. denied, 510 U.S. 683 (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. Gen.LR 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 

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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 

objection that merely incorporates by reference or refers to the 

briefing before the Magistrate Judge is not specific.

DONE this 12th day of May, 2016.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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