1

 This action was transferred from the Northern District of Alabama and filed with this

Court on September 6, 2005.

 IN THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

HENRY JOINER, :

Plaintiff, :

vs. : CIVIL ACTION 05-0509-WS-C

JESSE JONES, et al., :

Defendants. :

REPORT AND RECOMMENDATION

Plaintiff, an Alabama prison inmate proceeding pro se, filed a complaint under 42

U.S.C. § 1983 in the United States District Court for the Northern District of Alabama

(Doc. 1), but did not file a Motion to Proceed Without Prepayment of Fees or pay a filing

fee (Doc. 5).1

 This action was transferred on September 19, 2005 (Doc. 4) and referred

to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2 for

appropriate action. It is now before the Court for Plaintiff’s failure to prosecute and to

comply with the Court’s order. 

Plaintiff's complaint (Doc. 1) was not filed on the Court’s current form and he

failed to either pay a filing fee or file a Motion to Proceed In Forma Pauperis as directed

Case 2:05-cv-00509-WS-C Document 6 Filed 12/20/05 Page 1 of 4
by the Court in its Rules and Order of September 14, 2005 (Doc. 5). Thus, Plaintiff was

ordered by October 13, 2005, to file an amended complaint and IFP motion on the Court's

current forms (Id.). Plaintiff was advised that if he elected not to file the Court’s current

form for a complaint under 42 U.S.C. § 1983 and for a motion to proceed without

prepayment of fees, his action would be dismissed without prejudice for failure to

prosecute and to obey the Court's order. Plaintiff has not responded in any manner to the

Court's order, nor has Plaintiff's copy of the order been returned to the Court. 

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 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.) (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

Case 2:05-cv-00509-WS-C Document 6 Filed 12/20/05 Page 2 of 4
140 (1993).

The attached sheet contains important information regarding objections to this

Report and Recommendation.

DONE this 20th day of December, 2004.

s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

Case 2:05-cv-00509-WS-C Document 6 Filed 12/20/05 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.

DONE this 20th day of December, 2005.

s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

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