Blanding v. Allen et al

Filing 5

REPORT AND RECOMMENDATION recommending that this action be dismissed w/o prejudice pursuant to Rule 41(b), FRCP, due to Plf's failure to comply w/the Court's Order & to prosecute this action. Objections to R&R due by 3/10/2010. Signed by Magistrate Judge Sonja F. Bivins on 1/12/10. (copy mailed to Plf on 2/18/10) (tot)

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION ERIC BLANDING, Plaintiff, vs. RICHARD ALLEN, et al., Defendants. : : : : : CIVIL ACTION 09-00738-CG-B

REPORT AND RECOMMENDATION Plaintiff, an Alabama prison inmate proceeding pro se, filed the instant case alleging violations under 42 U.S.C. § 1983 (Doc. 1). This case was referred to the undersigned Magistrate Judge

pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2(c)(4) for appropriate action. Because Plaintiff has failed to prosecute and

to comply with the Court's Orders dated December 11, 2009 and January 5, 2010, it is recommended that this action be dismissed without prejudice. Plaintiff's complaint (Doc. 1) was not filed on the Court's form for action alleging violations of 42 U.S.C. § 1983.

Accordingly, on December 11, 2009, this Court issued an Order directing Plaintiff to re-file his complaint on this Court's required form by January 11, 2010. Plaintiff was also directed to

file a motion to proceed without prepayment of fees on the Court's

current form by January 11, 20101 (Doc. 2). Plaintiff's Copy of the Court's

On December 18, 2009, was returned as

Order

undeliverable.

As a result, the Court accessed the ADOC website

and learned that Plaintiff is now incarcerated at St. Clair Correctional Facility. Accordingly, on January 5, 2010, the Court

issued an Order directing the Clerk to resend the Court's previous Order to Plaintiff at his current address. In addition, the Court

extended the time for Plaintiff to re-file his Complaint and his motion to proceed without prepayment of fees to February 2, 2010. Plaintiff was advised that if failed to comply with the Court's Orders, his action would be dismissed without prejudice for failure to prosecute and to obey the Court's order. The Court also

directed the Clerk to forward to Plaintiff a copy of the requisite forms along with a copy of the Order. A review of the docket

reflects that to date, Plaintiff has not responded in any manner to the Court's Orders (Doc. 2,4), nor has his copy of the Orders and forms been returned to the Court. Due to 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 as no other lesser sanction will suffice. Link v. Wabash R. R., 370 U.S. 626, 630, 82

Plaintiff was also advised that in lieu of the motion to proceed without payment of fees, he could pay the $350.00 filing fee by (Doc. 2).

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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); 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) (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 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 this Report and Recommendation. DONE this 12th day of February, 2010. /s/SONJA F. BIVINS UNITED STATES MAGISTRATE JUDGE

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 fourteen 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 SD ALA LR 72.4 (June 1, 1997), which provides 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 days2 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. Transcript (applicable where proceedings tape recorded).

The Court's Local rules are being amended to reflect the new computations of time as set out in the amendments to the Federal Rules of Practice and Procedure, effective December 1, 2009.

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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 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 transcription is necessary is required before the United States will pay the cost of the transcript.

/s/SONJA F. BIVINS UNITED STATES MAGISTRATE JUDGE