Opinion
Civil Action 00-0870-CB-C
December 1, 2000
REPORT AND RECOMMENDATION
Plaintiff, an Alabama prison inmate proceeding pro se, filed a complaint under 42 U.S.C. § 1983 (Doc. 1), together with a Motion to Proceed Without Prepayment of Fees (Doc. 2). This action has been referred to the undersigned for appropriate action pursuant to 28 U.S.C. § 636 (b)(1)(B) and Local Rule 72.2(c)(4). It is recommended that this action be dismissed without prejudice for Plaintiff's failure to prosecute and to obey the Court's order.
Upon review of Plaintiff's complaint (Doc. 1), the Court found that it was not filed on this Court's form and did not comply with the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. In the Court's order dated October 12, 2000, Plaintiff was advised of Rule 8 (a)'s pleading requirements and was ordered by November 13, 2000, to file any amended complaint that complied with Rule 8(a)'s pleading requirements on this Court's form for a complaint under 42 U.S.C. § 1983 (Doc. 8). Plaintiff was warned that his failure to timely comply with the order within the prescribed time would result in the dismissal of his action.
Moreover, after review of Plaintiff's Motion to Proceed Without Prepayment of Fees (Doc. 2), the Court found that Plaintiff was required to pay a $2.50 partial filing fee (Doc. 9). By separate order on October 12, 2000, the Court ordered Plaintiff to pay the partial filing fee within twenty days (Doc. 9). Again, Plaintiff was warned that his failure to comply with the order within the prescribed time would result in the dismissal of his action. To date, the Court's orders dated October 12, 2000 (Docs. 8, 9), have not been returned to the Court, nor has the Plaintiff complied with the Court's orders.
Due to Plaintiff's failure to comply with the Court's orders by not filing an amended complaint on this Court's complaint form and by not paying the partial filing fee, the Court (S.D.N.Y.)concludes that Plaintiff has abandoned the prosecution of this action. Upon consideration of the alternatives that are available to the Court, the undersigned recommends 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). By separate order, the Alabama Department of Corrections is being ordered pursuant to 28 U.S.C. § 1915 (b) to collect the $150.00 filing fee from Plaintiff's prisoner account for the filing of this action.
The attached sheet contains important information regarding objections to this Report and Recommendation.