United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
BRADLEY MURRAY UNITED STATES MAGISTRATE JUDGE
an Alabama prison inmate proceeding pro se, filed a
petition under 28 U.S.C. § 2254 and a motion to proceed
without prepayment of fees (Docs. 1, 5). This action was
referred to the undersigned pursuant 28 U.S.C. §
636(b)(1)(B) and Local Rule 72.2, and is now before the Court
for Petitioner's failure to prosecute and to obey the
Court's Order dated December 4, 2018 (Doc. 6), denied
Petitioner's motion to proceed without prepayment of fees
(Doc. 5) and ordered Petitioner to remit to the Clerk of the
United States District Court, within twenty-one (21) days or
by December 26, 2018, the filing fee in the amount of $5.00.
Petitioner was warned that his failure to comply with the
Court's Order within the prescribed time would result in
the dismissal of his action (Doc. 6). To date, the filing fee
has not been received by the Court nor has there been any
response from the Petitioner.
Petitioner's failure to comply with the Court's Order
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).
attached sheet contains important information regarding
objections to the Report and Recommendation.
JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND
RESPONSIBILITIES FOLLOWING RECOMMENDATION AND FINDINGS
CONCERNING NEED FOR TRANSCRIPT
Objection. Any party who objects to
this recommendation or anything in it must, within ten days
of the date of service of this document, file specific
written objections with the clerk of court. Failure to do so
will bar a de novo determination by the district
judge of anything in the recommendation and will bar an
attack, on appeal, of the factual findings of the magistrate
judge. See 28 U.S.C. § 636(b)(1)(C); Lewis
v. Smith, 855 F.2d 736, 738 (11th Cir. 1988);
Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit
B, 1982)(en banc). The procedure for challenging the
findings and recommendations of the magistrate judge is set
out in more detail in S.D. ALA LR 72.4 (June 1, 1997), which
A party may object to a recommendation entered by a
magistrate judge in a dispositive matter, that is, a matter
excepted by 28 U.S.C. § 636(b)(1)(A), by filing a
“Statement of Objection to Magistrate Judge's
Recommendation” within ten days after being served with
a copy of the recommendation, unless a different time is
established by order. The statement of objection shall
specify those portions of the recommendation to which
objection is made and the basis for the objection. The
objecting party shall submit to the district judge, at the
time of filing the objection, a brief setting forth the
party's arguments that the magistrate judge's
recommendation should be reviewed de novo and a
different disposition made. It is insufficient to submit only
a copy of the original brief submitted to the magistrate
judge, although a copy of the original brief may be submitted
or referred to and incorporated into the brief in support of
the objection. Failure to submit a brief in support of the
objection may be deemed an abandonment of the objection.
magistrate judge's recommendation cannot be appealed to a
Court of Appeals; only the district judge's order or
judgment can be appealed.
Transcript (applicable where proceedings tape
to 28 U.S.C. § 1915 and Fed.R.Civ.P. 72(b), the
magistrate judge finds that the tapes and original records in
this action are adequate for purposes of review. Any party
planning to object to this recommendation, but unable to pay
the fee for a transcript, is advised that a judicial
determination that ...