IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

FREDERICK BERNARD SMILEY, * 

 *

Plaintiff, *

 *

vs. * CIVIL ACTION NO. 15-00090-KD-B

 *

CIRCUIT COURT OF MOBILE COUNTY, *

AL, et al., *

 *

Defendants. *

REPORT AND RECCOMENDATION

Plaintiff Frederick Bernard Smiley, an Alabama prison 

inmate proceeding pro se, filed a complaint under 42 U.S.C. § 

1983 (Doc. 1). This action was referred to the undersigned 

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

72(a)(2)(R), and is now before the Court due to Plaintiff’s 

failure to comply with the Court’s directives.

When Plaintiff initiated this action, he sought permission 

to proceed without prepayment of fees. (Doc. 2). Based upon a 

review of the institutional record of Plaintiff’s inmate account 

for the six month period preceding the filing of this action, 

the Court, in an order dated March 26, 2015 (Doc. 6), determined 

that Plaintiff is able to pay a partial filing fee of $5.78. 

Accordingly, Plaintiff was directed to pay a partial filing fee 

in the amount of $5.78. (Id.). Subsequent thereto, Plaintiff 

repeatedly requested and was granted additional time in which to 

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pay the $5.78 partial filing fee. (Docs. 7, 8, 9, 10, 11). At 

the Court’s directive, Plaintiff submitted an updated financial 

statement on July 6, 2015. (Doc. 13). 

In an order dated July 11, 2016 (Doc. 14), the undersigned 

observed that more than a year had elapsed since Plaintiff 

submitted his updated financial statement, and during that time, 

he had not paid the partial filing fee or provided any updated 

information demonstrating that he is unable to pay the partial 

filing fee. Accordingly, Plaintiff was directed to show cause, 

by August 11, 2016, why this action should not be dismissed for 

failure to comply with the Court’s order directing the payment 

of the partial filing fee in the amount of $5.78. Plaintiff was 

expressly advised that to the extent he contends that he is 

unable to pay the partial filing fee, he should file, by August 

11, 2016, an updated statement, signed by an appropriate prison 

official, reflecting all deposits into his prison account from 

May 31, 2015 through the date of the order.

Plaintiff was cautioned that the failure to comply with the

order within the prescribed time or to notify this Court of a 

change in address would result in a recommendation that this 

action be dismissed for failure to prosecute and to comply with 

the Court’s order. To date, Plaintiff has not paid the partial 

filing fee, submitted an updated financial statement reflecting 

all deposits into his account since May 31, 2015, or responded 

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to the Court’s order dated July 11, 2016. (Doc. 14). And, his 

copy of the Court’s order dated July 11, 2016 has not been 

returned to the Court. Thus, the Court assumes that Plaintiff 

has lost interest in this action. 

Due to Plaintiff’s failure to comply with the Court’s order 

dated July 11, 2016 (Doc. 14), and upon consideration of the 

alternatives available to the Court, the undersigned recommends 

that this action be dismissed without prejudice pursuant to Rule 

41(b) of the Federal Rules of Civil Procedure as Plaintiff has 

failed to comply with the Court’s directives, he appears to have 

lost interest in this action, and 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); Betty K. Agencies, LTD v. M/V Monada,

432 F. 3d 1333, 1337-1338 (llth Cir. 2005); 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 

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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).

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. GenLR 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 specify the place in the Magistrate Judge’s 

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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 9th day of September, 2016.

 /S/SONJA F. BIVINS _ 

 UNITED STATES MAGISTRATE JUDGE

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