Perkins v. Clayton et al

Filing 4

REPORT AND RECOMMENDATION recommending that this action be dismissed w/o prejudice as set out due to Plf's failure to prosecute & to comply w/the Court's Order. Objections to R&R due by 10/28/2009. Signed by Magistrate Judge William E. Cassady on 10/7/09. (copy mailed to Plf on 10/8/09) (tot)

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA NORTHERN DIVISION EDDIE JAMES PERKINS, Plaintiff, vs. ROBERT CLAYTON, et al., Defendants. : : : : : REPORT AND RECOMMENDATION Plaintiff, an Alabama prison inmate proceeding pro se, filed a complaint under 42 U.S.C. § 1983, together with a Motion to Proceed Without Prepayment of Fees (Docs. 1, 2). This action was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2(c)(4) for appropriate action. It is recommended that this action be dismissed without prejudice for Plaintiff's failure to prosecute. On August 25, 2009, a review of this action indicated that on, December 17, 2008, Plaintiff, while incarcerated in the Hale County Jail, filed a complaint (Doc. 1) and a Motion for Leave to Proceed Without Prepayment of Fees (Doc. 2). On December 22, 2008, the file was referred for review; however, no action had been taken through that date. Further, there had been no communication from Plaintiff. This Court discovered, through the Alabama CIVIL ACTION 08-0725-CG-C

Department of Corrections' website, that Plaintiff was incarcerated at Fountain Correctional Center. There was no record of Plaintiff advising the Court of a change in address. Because it appeared to the Court that Plaintiff, due to inactivity, may no longer wish to proceed with this action, Plaintiff was ORDERED to inform the Court not later than September 28, 2009, if he still

wished to proceed. If the Court did not hear from Plaintiff by that date, the Court would assume that Plaintiff no longer wish to pursue this action, and it would be dismissed, without prejudice, for Plaintiff's failure to prosecute. Further, Plaintiff was GRANTED leave to re-file his Motion to Proceed Without Prepayment of Fees by September 28, 2009, with the Financial Certificate completed by an authorized officer of the institution where he is presently incarcerated and the statutorily required copy of the institutional record attached, or to pay the $350.00 filing fee by September 28,2009. To date, Plaintiff has not responded to the Court's Order, nor has Plaintiff's copy of the Court's Order been returned to the Court. Due to Plaintiff's failure to prosecute and to comply with the Court's Order, the Court concludes that Plaintiff has abandoned the prosecution of this action. 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 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); Mingo v. Sugar Cane Growers Coop, 864 F.2d 101, 102 (11th Cir. 1989); Blunt v. U. S. Tobacco Co., 856 F.2d 192 (6th Cir. 1988) (unpublished); 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) (federal courts' inherent power to manage their own proceedings authorized the imposition of attorney's fees and related expenses as a sanction); Malautea v.

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Suzuki Motor Co., 987 F.2d 1536, 1545-46 (11th Cir. 1993) (the court's inherent power to manage actions before it permitted the imposition of fines), cert. denied, 510 U. S. 683, 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 7th day of October, 2009.

s/WILLIAM E. CASSADY UNITED STATES MAGISTRATE JUDGE

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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); 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 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. 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 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.