United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
BRADLEY MURRAY UNITED STATES MAGISTRATE JUDGE
prisoner action has been referred to the undersigned, in
accordance with 28 U.S.C. § 636(b)(1)(B) and S.D. Ala.
GenLR 72(a)(2)(R), for appropriate action. For the reasons
stated herein, it is recommended that the Court dismiss this
action, without prejudice, based upon Petitioner's
failure to prosecute this action and comply with the
Court's order dated October 24, 2019 (Doc. 2) and the
order contained in the instructions section of his habeas
corpus complaint that he immediately advise the Court
regarding any change in his address (Doc. 1, at 2).
Tracy Victor Goldman filed a petition for habeas corpus
relief in this Court on or about September 29, 2019, pursuant
to 28 U.S.C. § 2254, challenging the validity of his
September 22, 2019 SORNA conviction in the Circuit Court of
Mobile County, Alabama. (See Doc. 1, at 2 & 12).
The instructions accompanying Goldman's form habeas
complaint specifically advised Petitioner of the following:
“You must immediately advise the Court of any
change in your address, e.g., if you are released,
transferred, moved, etc. Failure to notify the Court of your
new address will result in the dismissal of this petition for
failure to prosecute and obey the Court's order.”
(Id. at 2 (emphasis in original)).
Goldman did not pay the $5.00 filing fee or, otherwise,
request permission to proceed without prepayment of fees and
costs at the time he filed his habeas petition
(compare Doc. 1, at 1 (“Upon receipt of a fee
of $5, your petition will be filed if it is in proper order.
 If you do not have the necessary filing fee, you may
request permission to proceed in forma pauperis, in
which event you must complete the “Motion to Proceed
Without Prepayment of Fees and Costs” form mailed to
you with this form, and have an authorized officer at the
jail or prison complete the attached financial
statement.”) with Docket Sheet), the
undersigned entered an order on October 23, 2019, instructing
Goldman (by November 13, 2019) “either to pay the
filing fee or to complete and file the Court's form for a
motion to proceed without prepayment of fees.” (Doc.
2.) Goldman was advised that his “[f]ailure to comply
with this order within the prescribed time will result in the
dismissal without prejudice of this action for failure to
prosecute and to obey the Court's order.”
has not complied with the order dated October 23, 2019 and
cannot so comply because that Order was returned to the
Clerk's Office as undeliverable on November 8, 2019.
(See Doc. 3). The envelope containing the order was
embossed as follows: “RETURN TO SENDER NO LONGER
HERE.” (Id. at 1). On November 13, 2019, the
undersigned's staff checked various relevant websites,
including the website for the Alabama Department of
Corrections and the website for the Mobile County
Sheriff's Office, but was unable to locate Goldman.
Petitioner, however, is responsible for this Court's
inability to locate him and forward to him the Order dated
October 23, 2019 because he did not advise this Court of his
change of address. (See Doc. 1, at 2 (requiring
petitioner to immediately advise the Court of any change in
his address and that any failure to so notify the Court would
result in the dismissal of his petition for failure to
prosecute and to obey the Court's order)).
action may be dismissed if a petitioner fails to prosecute it
or if he fails to comply with any court order. Fed.R.Civ.P.
41(b); see also Link v. Wabash Railroad Co., 370
U.S. 626, 630-631, 82 S.Ct. 1386, 1388-1389, 8 L.Ed.2d 734
(1962) (holding district courts have the power to sua
sponte dismiss a cause of action for failure to
prosecute); World Thrust Films, Inc. v. International
Family Entertainment, Inc., 41 F.3d 1454, 1456 (11th
Cir. 1995) (“‘A district court has authority
under Federal Rule of Civil Procedure 41(b) to dismiss
actions for failure to comply with local rules.'”).
case, because the Petitioner did not apprise this Court of a
change in his address, as ordered (see Doc. 1, at
2), he has not (and cannot) respond to the Court's Order
dated October 23, 2019, instructing him to pay the $5.00
filing fee or, otherwise, file this Court's form for a
motion to proceed without prepayment of fees
(compare Docket Sheet with Doc. 1, at 2
& Doc. 2). Therefore, it is recommended that the Court
DISMISS WITHOUT PREJUDICE Petitioner's habeas corpus
action, pursuant to Fed.R.Civ.P. 41(b), due to his failure to
prosecute this action by complying with this Court's
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)(1) & (2). 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 ...