United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
F. BIVINS, UNITED STATES MAGISTRATE JUDGE
action is before the Court on review. Plaintiff Antonio Flynn
filed the instant action seeking relief under 42 U.S.C.
§ 1983 while he was incarcerated at Holman Correctional
Facility, Holman 3700, Atmore, Alabama 36503-3700. (Doc. 1).
In an order dated October 24, 2017 (doc. 4), the Court
granted Flynn's request to proceed in forma
pauperis (doc. 3). Flynn was advised that it was his
duty to immediately advise the Court of any change of
address, including when he was released, transferred, etc.
(Doc. 4 at 4). He was also cautioned that failure to update
the Court of a change in his address would result in a
recommendation that his action be dismissed for failure to
prosecute and obey the Court's order. (Id.).
December 18, 2017, Flynn updated his address to reflect that
he had been transferred to Bibb County Correctional Facility,
565 Bibb Lane, Brent, Alabama 35034. (Doc. 6). On August 30,
2018, notice was sent to Flynn at the Bibb County
Correctional Facility advising him that his case was being
transferred from the docket of Senior United States District
Judge Callie V.S. Granade to that of United States District
Judge Terry F. Moorer. (Doc. 8). On September 13, 2018, the
notice to Flynn was returned as undeliverable. (Doc. 9). The
notation on the envelope indicated that the mail was being
returned because it was “not deliverable as
addressed” and that Bibb County Correctional Facility
was “unable to forward.” (Id. at 1).
Based upon a subsequent search of the website for the Alabama
Department of Corrections (“ADOC”), it appears
that Flynn is no longer in ADOC's custody. Further, Flynn
has not provided the Court with an updated address. As Flynn
is no longer in the custody of ADOC and has neglected to keep
the Court apprised of his current address, the Court has no
means by which to communicate with him, and surmises that he
has lost interest in this action.
light of the above, 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 as no 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); Mingo v. Sugar Cane
Growers Co-op, 864 F.2d 101, 102 (11th Cir. 1989);
Blunt v. U.S. Tobacco Co., 856 F.2d 192 (6th Cir.
1988) (unpublished); 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) (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) (the court's inherent power to manage actions
before it permitted the imposition of fines), cert.
denied, 510 U.S. 683, 114 S.Ct. 181, 126 L.Ed.2d 140
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 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