1

Plaintiff initiated this action while an inmate at Bullock

County Correctional Facility. (Doc. 1).

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

MARK P. JONES, :

 :

Plaintiff, :

 :

vs. : CIVIL ACTION 07-00009-WS-B

 :

KEVIN McKINNEY, :

:

Defendant. :

REPORT AND RECOMMENDATION

Plaintiff, a former Alabama prison inmate proceeding pro se

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

(Doc. 1). This case 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, and is now before the Court due to Plaintiff’s failure to

prosecute and to comply with the Court’s Order.

Plaintiff filed this Section 1983 action on January 3, 2007,

alleging a lack of medical care while at the Marengo County Jail.1

(Doc. 1). Subsequent to the filing of his Complaint, on May 8,

2007, Plaintiff filed a notice of address change with the Court

which indicated a “free-world address.” (Doc. 8). Because Plaintiff

initiated this action while a prisoner, the Court advised him that

he remained obligated to pay the $350.00 filing fee in this action;

thus, Plaintiff requested and was granted permission to proceed

Case 2:07-cv-00009-WS-B Document 29 Filed 03/17/10 Page 1 of 5
 2

A review of the docket reflects that mail sent to

Plaintiff’s last known address was returned on January 5, 2010

with the notation “moved, left no address”. (Doc. 24).

2

without prepayment of fees. (Docs. 10, 13, 14). On July 28, 2009,

the Court issued an Order directing the Clerk to serve Defendant

Kevin McKinney, Administrator, Marengo County Jail. (Doc. 14).

Defendant filed his Special Report and Answer. (Docs. 25, 27).

Upon review of Defendant’s Special Report and Answer, the

undersigned, on January 29, 2010, entered an Order converting the

Special Report and Answer to a Motion for Summary Judgment. (Doc.

28). Plaintiff was notified of the conversion, and of his right,

under Rule 56 of the Federal Rules of Civil Procedure, to submit

any information in opposition to the motion before February 22,

2010. Plaintiff was further directed to notify the Court in

writing, by February 22, 2010, if he wished to continue the

prosecution of this action2. Plaintiff was cautioned that if he

failed to respond to the Court’s Order by that date, the Court

would consider his case abandoned, and the case would be dismissed.

(Id.) Although the Order was mailed to Plaintiff’s address of

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

his copy of the Order been returned to the Court. 

In light of Plaintiff’s failure to comply with the Court’s

Order dated January 29, 2010, the undersigned concludes that

Plaintiff has lost interest and abandoned the prosecution of this

action. Upon consideration of the alternatives available to the

Case 2:07-cv-00009-WS-B Document 29 Filed 03/17/10 Page 2 of 5
3

Court, the undersigned recommends that this action be dismissed

with 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. Int’l Family Enter., 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 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).

The attached sheet contains important information regarding

objections to the Report and Recommendation.

DONE this 17th day of March, 2010.

 /s/ SONJA F. BIVINS 

UNITED STATES MAGISTRATE JUDGE

Case 2:07-cv-00009-WS-B Document 29 Filed 03/17/10 Page 3 of 5
 3

The Court’s Local rules are being amended to reflect the

new computations of time as set out in the amendments to the

Federal Rules of Practice and Procedure, effective December 1,

2009.

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 fourteen3 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). 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,

in part, 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. Opposing party’s response to the objection. Any opposing party may

submit a brief opposing the objection within fourteen days of being

served with a copy of the statement of objection. Fed. R. Civ. P. 72;

SD ALA LR 72.4(b). 

3. 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

Case 2:07-cv-00009-WS-B Document 29 Filed 03/17/10 Page 4 of 5
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.

 /S/ SONJA F. BIVINS 

UNITED STATES MAGISTRATE JUDGE

Case 2:07-cv-00009-WS-B Document 29 Filed 03/17/10 Page 5 of 5