United States District Court, S.D. Alabama, Southern Division
DRELIJAH J. MUHAMMAD, Petitioner,
RAY NORRIS, Respondent.
REPORT AND RECOMMENDATION
F. BIVINS UNITED STATES MAGISTRATE JUDGE
Drelijah J. Muhammad filed a petition ostensibly seeking relief
under 28 U.S.C. § 2241. (Doc. 1). 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 Muhammad has failed to prosecute
and to comply with the Court's Orders dated May 21, 2018
(doc. 14), and June 4, 2018 (doc. 17), it is recommended that
this action be dismissed without prejudice.
filed his petition on May 2, 2018. (Doc. 1). At the time of
his filing, he did not pay the $5.00 statutory filing fee,
nor did he file a motion to proceed without prepayment of
fees. Accordingly, in an order dated May 21, 2018, the Court
directed Muhammad to pay the statutory filing fee or file a
motion to proceed without prepayment of fees by June 5, 2018.
(Doc. 14). On June 1, 2018, Muhammad's copy of the
Court's order dated May 21, 2018 was returned as
undeliverable. (Doc. 15). A search of the website for the
Alabama Department of Corrections revealed that Muhammad has
been transferred to a new institution; however, he neglected
to advise the Court of the change in his address.
Accordingly, the Court issued an order dated June 4, 2018,
again directing Muhammad to pay the statutory filing fee or
file a motion to proceed without prepayment of fees by June
19, 2018. (Doc. 17). The order was mailed to Muhammad at his
new institution. As of the date of the instant report and
recommendation, Muhammad has not paid the statutory filing
fee, nor has he filed a motion to proceed without prepayment
of fees. Instead, he has filed two responses to the
Court's order wherein he contends that the filing fee was
“paid in full by Sheriff Ray Norris and Faye
Norris[.]” (Docs. 19 at 1; 20 at 2). However, a careful
review of the docket reflects that the Court has not received
a filing fee in this action, on Muhammad's behalf, from
anyone. Additionally, Muhammad has not produced any evidence
that demonstrates that the filing fee has been paid in this
due to Muhammad's failure to comply with the Court's
Orders dated May 21, 2018 (doc. 14), and June 4, 2018 (doc.
17), 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 that Muhammad disputes the Court's finding of
failure to pay the filing fee and desires to proceed with the
litigation of his action, he shall include with an objection
to the report and recommendation any documents that support
his assertion that the filing fee has been paid in this
action. See Wilson, 414 F.3d at 1320 (citing
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 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.
 Petitioner, a frequent litigant before
this Court, utilizes a variety of aliases. However, the
Alabama Department of Corrections lists Petitioner's
legal name as Marcus Taite, AIS No. 180664.
 Muhammad's complaint consists of
seven (7) handwritten pages in which he states, inter
alia, that he has been detained in the Clarke County,
Alabama, jail; has not committed a crime; and has never been
adjudged guilty of a crime. (Doc. 1 at 2-4). He makes no
reference to any statute under which his claims may arise,
but merely requests that the Court issue a writ of habeas
corpus. Accordingly, based on a close reading and liberal
construction of Muhammad's filing, the Court has
interpreted his claim as arising under 28 U.S.C. § 2241,
as he is seemingly challenging the execution of his sentence.
See 28 U.S.C. § 2241; Antonelli v. Warden,
U.S.P. Atlanta, 542 F.3d 1348, 1352 (11th Cir.
 In light of the Court's
recommendation that this action be dismissed, the undersigned
also recommends that Muhammad's motion to amend his
complaint (doc. 9), motion for the re-instatement of parole
(doc. 12), and petition for ...