Smith v. Jones et al

Filing 8

REPORT AND RECOMMENDATION recommending that this action be dismissed w/o prejudice pursuant to Rule 41(b), FRCP, due to Pet's failure to comply w/the Court's Order dated 10/6/08. Objections to R&R due by 12/22/2008. Signed by Magistrate Judge Sonja F. Bivins on 12/2/08. (copy mailed to Pet on 12/2/08) (tot)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION ANDY DEWAYNE SMITH, Petitioner, vs. KENNETH JONES, et al., Respondents. : : : : : REPORT AND RECOMMENDATION This is an action brought pursuant to 28 U.S.C. 2254 by an Alabama prison inmate, which has been referred to the undersigned pursuant to 28 U.S.C. 636(b)(1)(B), Local Rule 72.2(c)(4), and Rule 8 of the Rules Governing Section 2254 Cases for appropriate action. Because Petitioner has failed to prosecute and to comply CIVIL ACTION 08-00569-CG-B with the Court's Order dated October 6, 2008, it is recommended that this action be dismissed without prejudice. On September 3, 2008, Petitioner filed his petition for habeas relief in the United States District Court for the Middle District of Alabama. (Doc. 6).1 The Middle District entered an Order transferring this case to this Court on October 1, 2008. (Id.) On October 6, 2008, the Court ordered Petitioner to refile his petition on this Court's required form no later than November 6, 2008 (Doc. 7). Additionally, the Clerk was directed to forward to The Middle District granted Petitioner's motion for leave to proceed in forma pauperis. (Doc. 6). 1 Petitioner a copy of the requisite form along with a copy of the Order. Petitioner was cautioned that his failure to comply with the Court's Order within the prescribed time would result in the dismissal of his action for failure to prosecute and to obey the Court's Order. To date, Petitioner has not responded in any manner to the Court's Order, nor has his copy of the Order and form been returned to the Court. Due to Petitioner's failure to comply with the Court's Order dated October 6, 2008 (Doc. 7), 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 2 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). The attached sheet contains important information regarding objections to the Report and Recommendation. DONE this 2nd day of December, 2008. /S/ SONJA F. BIVINS UNITED STATES MAGISTRATE JUDGE 3 MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND RESPONSIBILITIES FOLLOWING RECOMMENDATION AND FINDINGS CONCERNING NEED FOR TRANSCRIPT 1. 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). The procedure for challenging the findings and recommendations of the magistrate judge is set out in more detail in SD ALA LR 72.4 (June 1, 1997), which provides, in part, that: 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. A magistrate judge's recommendation cannot be appealed to a Court of Appeals; only the district judge's order or judgment can be appealed. 2. Opposing party's response to the objection. Any opposing party may submit a brief opposing the objection within ten (10) days of being served with a copy of the statement of objection. Fed. R. Civ. P. 72; SD ALA LR 72.4(b). 3. Transcript (applicable where proceedings tape recorded). Pursuant 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 4 adequate for purposes of review. Any party planning to object this recommendation, but unable to pay the fee for a transcript, advised that a judicial determination that transcription necessary is required before the United States will pay the cost the transcript. DONE this the 2nd day of December, 2008. /s/ Sonja F. Bivins UNITED STATES MAGISTRATE JUDGE to is is of 5

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