United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
F. BIVINS UNITED STATES MAGISTRATE JUDGE
James Douglas Lewis, Jr. filed a petition seeking relief
under 28 U.S.C. § 2241 and a Motion for Waiver of Filing
Fee. (Docs. 1, 4). This case was referred to the undersigned
Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B)
and S.D. Ala. GenLR (72(a)(2)(R) for appropriate action.
Because Lewis has failed to prosecute and to comply with the
Court's Orders dated September 12, 2017 (doc. 5), and
November 29, 2017 (doc. 6), it is recommended that this
action be dismissed without prejudice.
Motion for Waiver of Filing Fee (doc. 4) reflects that in the
six months preceding the filing of Lewis' petition and
motion in August 2017, he had deposits to his prisoner
account totaling $230.00 (February 2017: $0; March 2017: $50;
April 2017: $80; May 2017: $100; June 2017:$0; July 2017:
$0). See 28 U.S.C. § 1915. This resulted in a
six-month average deposit of $38.33. In light of such,
Lewis' request for waiver of the filing fee was denied,
and he was directed to pay the $5.00 filing fee by October
31, 2017. (Doc. 5). Lewis did not pay the filing fee as
directed, and was afforded another sixty days to pay the
filing fee when the deadline for payment of the filing fee
was extended to January 5, 2018. (Doc. 6). As of the date of
the instant Order, Lewis has not paid the filing fee nor has
he otherwise responded to the Court's orders directing
him to pay the filing fee.
Lewis' failure to comply with the Court's Orders
dated September 12, 2017 (doc. 5), and November 29, 2017
(doc. 6), and upon consideration of the alternatives
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); 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. 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).
extent Lewis disputes the Court's finding of failure to
pay the filing fee and desires to proceed with the litigation
of his action, he shall set forth in an objection to the
report and recommendation the reasons for his failure to pay.
Wilson, 414 F.3d at 1320 (citing to Hatchet v.
Nettles, 201 F.3d 651, 654 (5th Cir. 2000) (finding that
an objection to a recommendation is an acceptable means to
ascertain the steps taken by a prisoner to comply with the
order to pay a partial filing fee)).
instructions which follow the undersigned's signature
contain important information regarding objections to the
report and recommendation of the Magistrate Judge.
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. 3-1. In order to be
specific, an objection must identify the specific finding or
recommendation to which ...