1

Because this action was filed in the Middle District of Alabama, and transferred to this

Court before April 9, 2006, the day filing fees were increased to $350.00, Plaintiff is only

responsible for the $250.00 filing fee. 

 IN THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

HENRY JOINER, :

Plaintiff, :

vs. : CIVIL ACTION 05-0471-BH-C 

HALE COUNTY DEPARTMENT OF :

HUMAN RESOURCES, et al.,

Defendants. :

REPORT AND RECOMMENDATION

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

Local Rule 72.2 (c)(4) for appropriate action. It is recommended that this action be dismissed

without prejudice for Plaintiff's failure to pay the filing fee. 

On August 18, 2006, Plaintiff notified the Court that he was no longer incarcerated (Doc.

6) and indicated to the Court that he wished to proceed with his action. Plaintiff filed this action

while he was a prisoner, and as a consequence of him no longer being incarcerated, he is

obligated to pay the entire $250.00 filing fee1

 for this action. 

On May 24, 2006, the Court advised the Plaintiff that if he wished to proceed with the

prosecution of this action, he is ordered to pay the $250.00 filing fee by June 27, 2006, as the

Case 2:05-cv-00471-BH-C Document 15 Filed 08/04/06 Page 1 of 4
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As of May 24, 2006, the Court had not received any money from the Plaintiff because he

was granted leave to proceed without prepayment of fees while he was incarcerated (Doc. 11). 

2

Court did not have the means by which to collect the filing fee.2 Plaintiff was further advised

that if he was unable to pay the amount owed in one, lump-sum payment by June 27, 2006, he

may file a new motion to proceed without prepayment of fees by June 27, 2006. Plaintiff was

warned that his failure to comply with the order within the prescribed time would result in the

dismissal of his action. Plaintiff has not paid the filing fee, nor has he otherwise responded to

the Court's order.

Due to Plaintiff's failure to comply with the Court's order and to prosecute this action by

paying the filing fee, 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 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 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).

Case 2:05-cv-00471-BH-C Document 15 Filed 08/04/06 Page 2 of 4
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The attached sheet contains important information regarding objections to this Report

and Recommendation.

DONE this 4th day of August, 2006.

s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

Case 2:05-cv-00471-BH-C Document 15 Filed 08/04/06 Page 3 of 4
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.

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.

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