United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
W. MILLING, JR. UNITED STATES MAGISTRATE JUDGE
Steven Robinson, an Alabama prison inmate proceeding pro
se and in forma pauperis, filed this §
1983 action. His action was referred to the undersigned for
appropriate action pursuant to 28 U.S.C. § 636(b)(1)(B)
and S.D. Ala. GenLR 72(a)(2)(R), and it is now before the
undersigned for his failure to prosecute and to obey the
filed his complaint on October 16, 2017, against Defendants
for use of excessive force on October 4, 2017. (Doc. 1 at 4).
Defendants Smith and McNeal were served and filed their
Answers and Special Reports. (Docs. 12, 13, 20, 21).
Defendant Manuel was not able to be served. (Docs. 7, 8, 11).
Upon review of these Defendants' pleadings, the Court
converted their Answers and Special Reports to a motion for
summary judgment and notified Robinson that the motion for
summary judgment would be taken under submission on September
11, 2018. (Doc. 22). The Court advised him how to respond to
the motion and informed him that granting the motion would
foreclose further litigation on this matter. (Id. at
1-2). The Court ordered Robinson by September 10, 2018, to
file his response to the motion and to advise the Court, in
writing, if he wanted to continue the litigation of this
matter. (Id. at 1, 3). He was warned that if he did
not indicate that he wanted to continue his litigation by
September 10, 2018, his case would be dismissed.
(Id. at 3).
Court's order (Doc. 22) was sent to Robinson at Holman
Correctional Facility (“Holman”), which is the
address that he provided to the Court. (Doc. 1).
Robinson's copy of the Court's order has not been
returned to the Court, nor has Robinson responded to the
Court's order in any manner. Furthermore, the Court
examined the website for the Alabama Department of
Corrections and discovered that Robinson is still
incarcerated at Holman.
has the inherent authority to dismiss an action sua
sponte for lack of prosecution through the powers vested
in it to manage its affairs. Link v. Wabash R. R.,
370 U.S. 626, 630, 82 S.Ct. 1386, 1388-89, 8 L.Ed.2d 734
(1962); Betty K Agencies, Ltd. v. M/V MONADA, 432
F.3d 1333, 1337 (11th Cir. 2005). In addition, Rule
41(b)'s authorization to dismiss an action due to the
plaintiff's failure to prosecute or to comply with a
court order has been interpreted to include sua
sponte dismissals by the court. Brutus v. IRS,
393 Fed.Appx. 682, 683 (11th Cir. 2010)
(unpublished); Wedgeworth v. Corizon Health,
Inc., 2013 WL 4791619, at *1 (S.D. Ala. 2013);
cf. Fed.R.Civ.P. 41(b) (containing language that a
defendant may move for dismissal). Out of necessity,
a court has this inherent power to dismiss an action
“in order to prevent undue delays in the disposition of
pending cases and to avoid congestion in the calendars of the
District Court.” Equity Lifestyle Props., Inc. v.
Fla. Mowing & Landscape Serv., Inc., 556 F.3d 1232,
1240 (11th Cir. 2009) (citation and internal quotation marks
the Court ordered Robinson to advise the Court, in writing,
if he wanted to continue the litigation of this action, and
he has not done so, and because he has not responded in any
manner to the Court's order, such as responding to the
summary judgment motion, he appears to have abandoned the
prosecution of his action. Considering the alternatives
available to the Court at this time and recognizing that
Defendants expended their time and resources defending this
action, the undersigned recommends that this action be
dismissed without prejudice as no lesser sanction will
suffice. Blunt v. U.S. Tobacco Co., 856
F.2d 192 (6th Cir.1988) (unpublished) (affirming the district
court's dismissal of the pro se plaintiff's
action for failure to prosecute when he failed to file a
response to the summary judgment motion or to show cause why
the action should not be dismissed).
upon the foregoing reasons, it is recommended that this
action be dismissed without prejudice for failure to
prosecute and to obey the Court's order.
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.
 “Unpublished opinions are not
considered binding precedent, but they may be cited as
persuasive authority.” 11th Cir. R. 36-2
 Even though the undersigned is
recommending that this action be dismissed without prejudice,
its dismissal will undoubtedly be a dismissal with prejudice
because the statute of limitations for a § 1983 action
is two years, Lufkin v. McCallum, 956 F.2d 1104,
1105, 1108 n.2 (11th Cir.), cert. denied, 506 U.S.
917 (1992), and Robinson ...