Opinion
Civil Action 99-0351-CB-M
January 25, 2001
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 on April 6, 1999 (Docs. 1, 2). This action, which has been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2(c)(4), is before the Court for Plaintiff's failure to prosecute and to obey the Court's Order.
The last communication from Plaintiff was filed on October 12, 1999, when he informed the Court that he could not furnish the Court with a current address for Defendant David Bowen (Doc. 17). He also did not file a response to Defendants' Special Report, which was filed on August 27, 1999 (Doc. 15). Although no response is required, it has been the experience of the court that inmates usually file a response or objection to Special Reports. So, on December 21, 2000, the Court ordered Plaintiff to inform the Court by January 8, 2001, if he wanted to proceed with the prosecution of this action. Plaintiff was warned that his failure to respond would be considered by the Court as an abandonment of the prosecution of this action by him and that the action would be dismissed (Doc. 22). The Order was mailed to Plaintiff at Holman Correctional Facility, his last known address. Plaintiff has not responded nor has the Order been returned to the court by postal authorities as undelivered. The Court finds that Plaintiff has abandoned prosecution of this action.
Due to Plaintiff's failure to comply with the Court's Order, and upon consideration other available alternatives, 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); 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. 1985); Jones v. Graham, 709 F.2d 1457, 1458 (11th Cir. 1993). 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. 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).