United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
F. BIVINS UNITED STATES MAGISTRATE JUDGE.
action, which was filed by Marcus Palmer, an Alabama state
inmate, has been referred to the undersigned pursuant to 28
U.S.C. § 636(b)(1)(B) and S.D. Ala. GenLR 72(a)(2)(R)
for appropriate action. Upon review, it is recommended that
this action be dismissed due to Plaintiff's failure to
prosecute and comply with the Court's order.
Palmer filed this action pursuant to 42 U.S.C. § 1983
alleging excessive force by Officer Brewer and a failure to
intervene and protect on the part of Officer Lindsay, who
allegedly witnessed the excessive force occurring. (Doc. 1).
In their Answer and Special Report, Defendants Brewer and
Lindsay argued that they are entitled to sovereign and
qualified immunity, that the extent of the injury was
minimal, that Officer Brewer did not use force on Plaintiff,
and that Officer Lindsay did not have a realistic chance of
preventing the alleged attack. (Docs. 19, 20). Defendant's
Answer and Special Report was converted into a motion for
summary judgment on November 3, 2016. (Doc. 21). In the order
converting Defendants' Answer and Special Report,
Plaintiff was ordered to inform the Court in writing by
December 8, 2016, if he desired to continue with this
litigation, and he was cautioned that if he did not respond,
the Court would consider him to have abandoned this action
and would treat the motion for summary judgment as unopposed.
(Doc. 21 at 4-5). Plaintiff was also provided an opportunity
to respond to the motion for summary judgment by the December
8th deadline. (Id.).
date, Plaintiff has not responded to the Court's Order,
nor has his copy of the Order been returned to the
Court. Because it appears that Plaintiff has
lost interest in this case, and due to his failure to comply
with the Court's Order and to prosecute this action, it
is recommended, upon consideration of the alternatives that
are available to the Court, that this action be dismissed
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) to not 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 (11thCir. 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.
1993)(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).
of Right to File Objections
of this report and recommendation shall be served on all
parties in the manner provided by law. Any party who objects
to this recommendation or anything in it must, within
fourteen (14) days of the date of service of this document,
file specific written objections with the Clerk of this
Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P.
72(b); S.D. ALA GenLR 72(c). The parties should note that
under Eleventh Circuit Rule 3-1, “[a] party failing to
object to a magistrate judge's findings or
recommendations contained in a report and recommendation in
accordance with the provisions of 28 U.S.C. § 636(b)(1)
waives the right to challenge on appeal the district
court's order based on unobjected-to factual and legal
conclusions if the party was informed of the time period for
objecting and the consequences on appeal for failing to
object. In the absence of a proper objection, however, the
court may review on appeal for plain error if necessary in
the interests of justice.” 11th Cir. R.
order to be specific, an objection must identify the specific
finding or recommendation to which objection is made, state
the basis for the objection, and specify the place in the
Magistrate Judge's report and recommendation where the
disputed determination is found.
objection that merely incorporates by reference or refers to
the briefing done by the Magistrate Judge is not specific.
 Plaintiff's claims against
Defendant Ammons were dismissed prior to service of process
because Plaintiff's claims against Defendant Ammons were
either frivolous or failed to state a claim upon which relief
could be granted. (Docs. 5, 10).
 Plaintiff's last contact with the
Court was in April 2015. ...