United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
W. MILLING, JR. UNITED STATES MAGISTRATE JUDGE.
who is proceeding pro se and in forma
pauperis, filed a Complaint under 42 U.S.C. § 1983
and a Motion for Leave to Proceed in forma pauperis (Doc. 4,
Attachments 1 and 2) in the Northern District of Alabama.
This action was transferred to the Southern District of
Alabama on December 24, 2018 (Doc. 4) and has been referred
to the undersigned pursuant for appropriate action pursuant
to 28 U.S.C. § 636(b)(1)(B) and S.D. Ala. Gen.LR
72(a)(2)(R). Plaintiff has failed to comply with this
Court's Order and has failed to prosecute this action.
screening of this action pursuant to 28 U.S.C. §
1915(e)(2)(B), the Court found that the relief and claims
sought by Plaintiff in his complaint are not clearly pled. In
order for Plaintiff to proceed on his claims, Plaintiff was
ordered to replead his claims, whether they were brought as a
§ 1983 action or a habeas corpus action, not later than
June 3, 2019 (Doc. 10). Plaintiff was warned that his failure
to comply with the Court's Order or to notify the Court
of a change in address would result in the dismissal of this
action for failure to prosecute and to obey the Court's
Order (Doc. 10). The Order and forms were mailed to Plaintiff
at Bibb County Correctional Facility, 565 Bibb Lane, Brent,
Alabama 35034, his last known address. To date, Plaintiff has
not responded to the Court's Order, nor has the Order and
forms been returned as undeliverable. Thus, the Court finds
that Plaintiff has abandoned prosecution of this action.
Plaintiff's failure to comply with the Court's Order
and to prosecute this action, 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 for failure to prosecute and to obey the
Court's Order, as no other lesser sanction will suffice.
Link v. Wabash R. R., 370 U.S. 626, 630, 82 S.Ct.
1386, 1388-89, 8 L.Ed.2d 734, 738 (1962) (interpreting Rule
41(b) not to restrict the court's inherent authority to
dismiss sua sponte an action for lack of
prosecution); see also World Thrust Films, Inc. v.
International Family Entm't, Inc., 41 F.3d 1454,
1456-57 (11th Cir. 1995) (requesting the court to consider
lesser sanctions); Mingo v. Sugar Cane Growers
Co-op, 864 F.2d 101, 102 (11th Cir. 1989)(Same);
Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir.
1985)(Same); Jones v. Graham, 709 F.2d 1457, 1458
(11th Cir. 1983)(Same); Blunt v. U.S. Tobacco Co.,
856 F.2d 192 (6th Cir.1988) (Unpublished);
Accord Chambers v. NASCO, Inc., 501 U.S. 32, 45-46
(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.)(finding that the courts' inherent power to
manage actions before it permitted the imposition of fines),
cert. denied, 510 U.S. 683 (1993).
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 ...