IN THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

HENRY JOINER, :

Plaintiff, :

vs. : CIVIL ACTION 05-00501-CG-B

CITY OF GREENSBORO, et al., :

Defendants. :

REPORT AND RECOMMENDATION

Plaintiff, an Alabama prison inmate proceeding pro se, filed

the instant case alleging violations under 42 U.S.C. § 1983

(Doc. 5, Attachment 2). This case was referred to the

undersigned Magistrate Judge pursuant to 28 U.S.C. §

636(b)(1)(B) and Local Rule 72.2(c)(4) for appropriate action.

Because Plaintiff has failed to prosecute and to comply with the

Court’s Order dated September 15, 2005, it is recommended that

this action be dismissed without prejudice. 

Plaintiff's Complaint (Doc. 5, Attachment 2) was not filed

on the Court’s required form, and his petition to proceed

without prepayment of fees (Doc. 5, Attachment 3) was not

accompanied by the required institutional record of his inmate

account. Plaintiff’s Complaint was also deficient, in that the

allegations made in the complaint were not connected to a

Defendant, and were vague and conclusory. Accordingly, on

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September 15, 2005, this Court issued an Order directing

Plaintiff to file his Complaint on the Court's current forms,

and to re-file his motion to proceed without prepayment of fees

along with a copy of the institutional record of his inmate

account, by September 30, 2005. (Doc. 6). Plaintiff was advised

that if he elected not to re-file on the Court’s current forms

for a Complaint under 42 U.S.C. § 1983, along with a motion to

proceed without prepayment of fees accompanied by the

institutional record of his inmate account, or pay the filing

fee, his action would be dismissed without prejudice for failure

to prosecute and to obey the Court's Order. The Court also

directed the Clerk to forward to Plaintiff a copy of the

requisite forms along with a copy of the Order.

As of this date, Plaintiff has neither re-filed his

Complaint on the Court’s current form for a complaint under 42

U.S.C. § 1983, nor filed a motion to proceed without prepayment

of fees accompanied by the institutional record of his inmate

account. 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.,

Case 2:05-cv-00501-CG-B Document 7 Filed 10/21/05 Page 2 of 5
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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. 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 this Report and Recommendation.

DONE this 21st day of October, 2005.

/S/ SONJA F. BIVINS 

UNITED STATES MAGISTRATE JUDGE

Case 2:05-cv-00501-CG-B Document 7 Filed 10/21/05 Page 3 of 5
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). 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. Opposing party’s response to the objection. Any opposing party

may 

submit a brief opposing the objection within ten (10) 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

purposes of review. Any party planning to object to this

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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

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