Opinion
Civil Nos. 00-0386-RV-M, 00-0387-AH-M, 00-0388-CB-M, 00-0389-P-M, 00-0390-P-M, 00-0437-RV-M, 00-0439-CB-M, 00-0441-AH-M.
October 2, 2000.
REPORT AND RECOMMENDATION
Plaintiff, who is proceeding pro se, filed a complaint together with a request to proceed in forma pauperis in each of the above actions. These actions which have been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(A) and Local Rule 72.2(c)(1) are before the Court for Plaintiff's failure to prosecute.
On August 24, 2000, the undersigned ordered Plaintiff in each of the above actions to complete and file this Court's form for a motion to proceed without prepayment of fees. The Court's Order in each action was mailed to Plaintiff at his last known address, 157-A Everette Street, Mobile, Alabama 36604, and was returned to the Court with the notation "Forwarding Order Expired." Plaintiff has not contacted the Court with a change of address, nor has he inquired as to the status of his actions. The Court, therefore, concludes that Plaintiff has abandoned prosecution of these actions.
Plaintiff is very familiar with the court system. Plaintiff is a former inmate of the Alabama Department of Corrections. While an inmate, he filed numerous actions, many of which were unintelligible. Plaintiff's inmate actions filed in this Court were dismissed either as frivolous or for failure to prosecute.
After Plaintiff's release from incarceration, he, at different times, has filed a spate of actions containing pleadings of the same caliber as his inmate actions. During the time period that Plaintiff filed the above actions, he also filed Phillips v. McNeilly. et al., 00-0436-P-S; Philhos v. Sgt. McMillian. et al., 00-0438-CB-S; and Phillips v. Jay Starling. et al., 00-0440-CB-S, which have been recommended for dismissal for failure to prosecute.
Due to Plaintiff's failure to prosecute, and upon consideration of 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, 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.) (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)
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.