Opinion
CIVIL ACTION NO. 15-00182-CB-B
09-24-2015
REPORT AND RECOMMENDATION
Petitioner David Killingsworth filed a petition seeking habeas corpus relief under 28 U.S.C. § 2254, and an in forma pauperis declaration. (Docs. 1, 2). Because Killingsworth has failed to prosecute and to comply with the Court's order dated April 20, 2015 (Doc. 3), it is recommended that this action be dismissed without prejudice.
This case was referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 63 6(b)(1)(B) and Local Rule 72.2(c)(4) for appropriate action. --------
Killingsworth's habeas petition and declaration are not on the forms required by this Court. Accordingly, in an order entered on April 20, 2015 (Doc. 3), this Court directed Killingsworth to refile his petition and declaration on the forms required by this court by May 7, 2015. Killingsworth was further advised that in lieu of filing a motion to proceed without prepayment of fees, he could pay the $5 filing fee by May 7, 2015 (Doc. 3). Killingsworth was expressly advised that if he elected not to refile on the Court's current forms for a petition under 28 U.S.C. § 2254 and a motion to proceed without prepayment of fees, or in lieu thereof, pay the required $5.00 filing fee, this action would be dismissed without prejudice for failure to prosecute and to obey the Court's order. (Id.) The Court also directed the Clerk to forward to Killingsworth a copy of the requisite forms along with a copy of the order. To date, Killingsworth has not responded in any manner to the Court's order, nor has his copy of the order and forms been returned to the Court.
Due to Killingsworth's failure to comply with the Court's April 20, 2015 order(Doc. 3), 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 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).
Notice of Right to File Objections
A copy 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. L.R. 72.4. The parties should note that under Eleventh Circuit precedent, "the failure to object limits the scope of [] appellate review to plain error review of the magistrate judge's factual findings." Dupree v. Warden, Attorney General, State of Alabama, 715 F.3d 1295, 1300 (11th Cir. 2011). In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the Magistrate Judge's report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the Magistrate Judge is not specific.
DONE this the 24th day of August, 2015.
/S/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE