United States District Court, S.D. Alabama, Southern Division
REPORT & RECOMMENDATION
W. MILLING, JR., UNITED STATES MAGISTRATE JUDGE
action, which was filed by Charles Brown, 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.
Brown filed this action pursuant to 42 U.S.C. § 1983
alleging that Defendants Warden Kenneth Peters, Captain Kevin
Bishop, Lieutenant Teresa Mitchell-Norman, and Sergeant James
McKenzie violated his constitutional rights. (Doc. 16).
Plaintiff alleges he was “thrown in a sally port”
after receipt of two “arbitrary” disciplinary
charges (Insubordination and Disorderly Conduct) “for
the same offense.” (Doc. 16-1 at 1). Plaintiff states
he was handcuffed to a pole (a “hitching pole”)
in the sally port, restrained in direct sunlight for over
seven (7) hours, and forced to “use the bathroom on
himself” because the sally port lacks restroom
facilities. (Doc. 16 at 4; Doc. 16-1 at 1). Additionally,
Plaintiff alleges, “he was sanctioned at the
disciplinary hearing 30-30 consecutive days in segregation
only because he wanted his medical treatment.” (Doc.
16-1 at 1).
their Answer and Special Report, Defendants Peters, Bishop,
and Mitchell-Norman argued that Plaintiff fails to state a
plausible claim against any Defendant. (Doc. 33, Doc. 34 at
8-9). Defendants present evidence regarding the incident in
question, including affidavits of the defendants, the
incident report for the precipitating event in question,
medical records, and disciplinary charges for the complained
of incident. (See Docs. 34, 34-1, 34-2, 34-3, 34-4).
The Answer and Special Report were converted into a motion
for summary judgment on February 6, 2018. (Doc. 36). In the
order converting the Answer and Special Report, Plaintiff was
ordered to inform the Court in writing by March 6, 2018, 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 the case would
be dismissed. (Doc. 36 at 3). Plaintiff was also provided an
opportunity to respond to the motion for summary judgment by
the March 6th deadline. (Id.)
date, Plaintiff has not responded to the Court's Order,
nor has his copy of the Order been returned to the Court. It
thus appears that he has lost interest in this litigation. In
light of Plaintiff's failure to respond and to prosecute
this action, his apparent loss of interest in this case, and
upon consideration of the alternatives that are available to
the Court, it is recommended 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 (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. 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. Gen.LR 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 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. An objection that merely
incorporates by reference or refers to the briefing before
the Magistrate Judge is not specific.
 This action was transferred from the
Northern District of Alabama and filed in the Southern
District of Alabama on April 28, 2017 (Doc. 9). Plaintiff was
ordered by the Court to refile his complaint on this
Court's form for a complaint under 42 U.S.C. § 1983.
(Doc. 11). Plaintiff was advised that the new complaint would
supersede the prior complaint(s) filed in the Northern
District of Alabama and further advised not to rely on his
prior complaint(s). (Id.). Plaintiff filed an
amended complaint in this Court on July 25, 2017. (Doc. 16).
The Court will considered this amended complaint (Doc. 16) to
be the operative complaint of this action.
 The Court notes that Plaintiff's
complaint, as it currently stands, is extremely vague, and
conclusory allegations, those lacking specificity and
evidentiary support, are insufficient to withstand a motion
for summary judgment. Holifield v. Reno, 115 F.3d
1555, 1564 n.6 (11th Cir. 1997)(Mere conclusory allegations,
“in the absence of supporting evidence, are
insufficient to withstand summary judgment.”).
Plaintiff, as the nonmoving party to the motion for
summary judgment, bears the burden of showing the existence
of each essential element to his case on which he bears the
burden of proof at trial. Howard v. BP Oil Company,32 F.3d 520, 524 (11th Cir. 1994)(citing Celotex Corp. v.
Catrett, 477 ...