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 Scott Myers
filed the instant action seeking relief under 42 U.S.C.
§ 1983 while he was detained by the U.S. Marshal Service
and housed at the Escambia County Detention Center. (Doc. 1).
Myers also filed motions to file a non-standard complaint
(doc. 2), to proceed in forma pauperis (doc. 3), and
for a temporary restraining order (doc. 4). In an order dated
November 15, 2017, the Court directed Myers to re-file his
complaint and motion to proceed in forma pauperis on
the Court's required forms no later than December 15,
2017. (Doc. 6). The Court also denied Myers' motion to
file a non-standard complaint. (Id.). Instead of
complying with the Court's orders, Myers filed a motion
for reconsideration, wherein he advised the Court that he was
unable to obtain the necessary financial information that
needed to accompany his motion to proceed in forma
pauperis. (Doc. 9). The Court denied the motion on
December 7, 2017, and granted Myers leave to re-file his
complaint and motion to proceed in forma pauperis by
December 29, 2017. (Doc. 12). During this time frame, Myers
was transferred from the Escambia County Detention Center to
a federal prison in Lovejoy, Georgia. (Doc. 16).
December 27, 2017, Myers filed an amended complaint and a
second motion to proceed without prepayment of fees. (Docs.
20, 21). His amended complaint was, again, on an improper
form. Further, Myers' motion to proceed in forma
pauperis failed to include a printout of his prisoner
account for the six months preceding the filing of his action
or a declaration, submitted under penalty of perjury,
identifying every request he previously made for his
financial statement. Accordingly, the Court again granted
Myers leave to file a second amended complaint by May 23,
2018. (Doc. 34). Further, the Court directed Myers to re-file
his motion to proceed without prepayment of fees by May 31,
25, 2018, Myers filed his second amended complaint, and on
June 4, 2018, he filed his motion to proceed without
prepayment of fees, and include the required financial
statement. (Docs. 35, 39). In the process of reviewing
Myers' motion, the Court learned that he was no longer in
custody. In an order dated July 16, 2018, the Court noted
that Myers was released from the custody of the Federal
Bureau of Prisons (“BOP”) and, as a result, he
was required to complete a new motion to proceed in forma
pauperis. (Doc. 43). The Court granted Myers' until
August 16, 2018 to file a new motion to proceed in forma
pauperis in light of his changed circumstances.
(Id.). Additionally, the Court reminded Myers of his
responsibility to keep the Court apprised of any change in
his address and cautioned him that failure to comply with the
order within the prescribed time or to notify the Court of a
change in his address would result in a recommendation that
his action be dismissed for failure to prosecute and comply
with the Court's order. (Id.). Finally, because
Myers had not provided the Court with an updated address, the
Clerk was directed to send a copy of the order to Myers at
his last address of record, under the assumption that Myers
had provided BOP with a forwarding address. (Id.).
On July 31, 2018, Myers' copy of the order dated July 16,
2018 was returned to the Court with the notations
“RETURN TO SENDER, ” “NO MAIL RECEPTACLE,
” “UNABLE TO FORWARD”. (Doc. 45).
search of the BOP website confirms that Myers was released
from BOP custody on July 6, 2018. To date, Myers has not
provided the Court with an updated address. Because Myers is
no longer in the custody of the BOP and has neglected to keep
the court appraised 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