IN THE UNITED STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

RALPH RUSSELL MARTIN, :

Plaintiff, :

vs. : CIVIL ACTION 05-0069-WS-B

DALLAS COUNTY PROBATE COURT, :

et al.,

:

Defendants.

ORDER

Plaintiff, proceeding pro se, filed a complaint under 42

U.S.C. § 1983 and a motion to proceed without prepayment of fees

on June 29, 2004 (Docs. 1 & 2). The Complaint was not on the

Court’s required form and was not legible. It contained vague

and conclusory allegations, and did not comply Rule 8(a) of the

Federal Rules of Civil Procedure. Furthermore, Plaintiff’s

motion to proceed in forma pauperis did not provide the Court

with the information necessary to determine who Plaintiff

provides for life basic necessities. Accordingly, in an Order

dated March 3, 2005, Plaintiff was directed to refile, by March

31, 2005, his complaint on the Court’s 42 U.S.C. § 1983 form and

to pay the $150.00 filing fee or to file a new motion to proceed

without prepayment of fees, in which he addressed the

deficiencies highlighted in the Court’s Order (Doc. 3).

Plaintiff was advised if he did not comply with the Court’s

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Order within the prescribed time, his action would be dismissed

without prejudice for failure to prosecute and to obey the

Court’s order. 

On March 3, 2005, Plaintiff filed a revised motion to

proceed without prepayment of fees; however, Plaintiff did not

file a new complaint or offer any explanation for his failure to

do so. (Doc. 4). Furthermore, Plaintiff’s revised motion to

proceed without prepayment of fees did not correct the

deficiencies noted in the Court’s Order. The new motion still

does not provide information regarding income available to

Plaintiff. While Plaintiff asserts that he is self-employed,

the revised motion does not indicate the type of work in which

Plaintiff is engaged, or more importantly, it does not provide

any information regarding income Plaintiff is generating in

connection with his self-employment.

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 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

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an action for lack of prosecution); World Thrust Films, Inc. v.

International Family Entertainment, Inc., 41 F.3d 1454, 1456-57

(11th Cir. 1995); Ballard v. Carlson, 882 F.2d 93 (4th Cir.

1989), cert. denied, Ballard v. Volunteers of America, 493 U.S.

1084, 110 S.Ct. 1145, 107 L.Ed.2d 1049 (1990); 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)

(federal courts’ inherent power to manage their own proceedings

authorized the imposition of attorney's fees and related

expenses as a sanction).

The attached sheet contains important information regarding

objections to this report and recommendation.

DONE this 15th day of July, 2005.

S/ SONJA F. BIVINS 

UNITED STATES MAGISTRATE JUDGE

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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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S/ SONJA F. BIVINS 

UNITED STATES MAGISTRATE JUDGE

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