IN THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

LEWIS TAYLOR, :

 : 

Plaintiff, :

 :

vs. : CIVIL ACTION 10-0018-CG-M 

 : 

STATE OF ALABAMA, : 

 :

Defendant. : 

 

REPORT AND RECOMMENDATION

Plaintiff, a Dallas County prison inmate proceeding pro se,

filed a complaint under 42 U.S.C. § 1983 on an outdated form

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

to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2, and is before

the Court for Plaintiff's failure to prosecute and to comply with

the Court’s Order. 

On March 2, 2010, the Court ordered Plaintiff to complete

and file this Court’s current forms for a complaint under 42

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

fees by April 1, 2010 (Doc. 2). Plaintiff was warned that his

failure to comply with the Order within the prescribed time would

result in the dismissal of his action for failure to prosecute

and to obey the Court’s Order. The Order was mailed to Plaintiff

at 988 Selfield Road, Selma, Alabama 36703, his last known

address. The Court’s Order dated March 2, 2010, has not been

returned to the Court, nor has the Court, to date, heard from

Case 2:10-cv-00018-CG-M Document 7 Filed 04/07/10 Page 1 of 4
2

Plaintiff since this Order was entered. The Court finds that

Plaintiff has abandoned prosecution of this action.

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 for failure to

prosecute and to obey the Court's order, as no other lesser

sanction will suffice. Link v. Wabash R. R., 370 U.S. 626, 630,

82 S.Ct. 1386, 1388-89, 8 L.Ed.2d 734, 738 (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),

Case 2:10-cv-00018-CG-M Document 7 Filed 04/07/10 Page 2 of 4
3

cert. denied, 510 U.S. 863, 114 S.Ct. 181, 126 L.Ed.2d 140

(1993).

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 fourteen 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 fourteen 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.

Case 2:10-cv-00018-CG-M Document 7 Filed 04/07/10 Page 3 of 4
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 7th day of April, 2010.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

Case 2:10-cv-00018-CG-M Document 7 Filed 04/07/10 Page 4 of 4