Menefee v. Brown

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

BRIAN MENEFEE, # 196705, *

*

Plaintiff, *

*

vs. * CIVIL ACTION NO. 22-00039-TFM-B

*

C.O. BROWN, et al., *

*

Defendants. *

REPORT AND RECOMMENDATION

This action is before the Court on review. Plaintiff Brian

Menefee, an Alabama prison inmate proceeding pro se, filed a

complaint seeking relief under 42 U.S.C. § 1983 and a motion to

proceed without prepayment of fees. (Docs. 1, 2).1 On March 29,

2022, the Court granted Menefee’s motion to proceed without

prepayment of fees and ordered Menefee to pay an initial partial

filing fee of $61.85 by April 25, 2022. (Doc. 5 at 1-2). The

Court expressly advised Menefee that he was required to pay the

$61.85 initial partial filing fee before this case could proceed

further and cautioned him that failure to comply with the order

within the prescribed time would result in the dismissal of this

action. (Id.). The order was mailed to Menefee at the Fountain

1 This action was referred to the undersigned Magistrate Judge

pursuant to 28 U.S.C. § 636(b)(1) for consideration and disposition

or recommendation on all pretrial matters as may be appropriate.

(Doc. 3).

Correctional Facility address listed on each of his filings in

this case. (See Docs. 1, 2, 4).

The order for Menefee to pay the initial partial filing fee

was not returned to the Court as undeliverable; however, Menefee

failed to pay the initial partial filing fee by April 25, 2022 as

directed. A subsequent search of the website for the Alabama

Department of Corrections (“ADOC”) revealed that Menefee had been

transferred to Limestone Correctional Facility. Menefee did not

notify the Court of his change of address.

In light of Menefee’s transfer, the undersigned, on May 23,

2022, directed the Clerk to update Menefee’s address on file and

mail the Court’s previous order dated March 29, 2022 to him at his

new address. (Doc. 6 at 2). The Court sua sponte extended the

deadline for Menefee to pay the $61.85 initial partial filing fee

to June 21, 2022. (Id.). The undersigned cautioned Menefee that

failure to fully comply with the Court’s order within the

prescribed time would result in a recommendation that this action

be dismissed for failure to prosecute and obey the Court’s orders.

(Id. at 2-3).

To date, Menefee has not paid any portion of the $61.85

initial partial filing fee despite being ordered to pay the fee no

later than June 21, 2022. Menefee has not requested additional

time to pay the initial partial filing fee, he has not indicated

that he is unable to pay the initial partial filing fee, and he

has not provided any other explanation for his failure to pay the

initial partial filing fee as directed. Additionally, none of the

Court’s orders sent to Menefee in this case have been returned as

undeliverable, and ADOC’s website reflects that Menefee remains

incarcerated at Limestone Correctional Facility, where the Court’s

orders dated March 29, 2022 and May 23, 2022 were mailed to him in

May 2022. (See Doc. 6 at 2).

A court may dismiss an action sua sponte under Federal Rule

of Civil Procedure 41(b) for a plaintiff’s failure to prosecute or

obey a court order. Brown v. Tallahassee Police Dep’t, 205 F.

App’x 802, 802 (11th Cir. 2006) (per curiam) (citing Fed. R. Civ.

P. 41(b); Lopez v. Aransas Cty. Indep. Sch. Dist., 570 F.2d 541,

544 (5th Cir. 1978)).2 “In addition to its power under Rule 41(b),

a court also has the inherent ability to dismiss a claim in light

of its authority to enforce its orders and provide for the

efficient disposition of litigation.” Zocaras v. Castro, 465 F.3d

479, 483 (11th Cir. 2006) (citing Link v. Wabash R.R., 370 U.S.

626, 630–31 (1962)). To dismiss an action with prejudice for

failure to prosecute, comply with the Federal Rules of Civil

Procedure, or follow a court order, the court must find “a clear

record of delay or willful conduct and that lesser sanctions are

2 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.

1981) (en banc), the Eleventh Circuit adopted as binding precedent

the decisions of the former Fifth Circuit handed down prior to the

close of business on September 30, 1981.

inadequate to correct such conduct.” Betty K Agencies, Ltd. v.

M/V MONADA, 432 F.3d 1333, 1339 (11th Cir. 2005).

As noted previously, Menefee has made no apparent attempt to

comply with the Court’s orders to pay the initial partial filing

fee, even after the undersigned sua sponte extended the deadline

for him to comply based on his address change. Nor has Menefee

explained his failure to comply with the Court’s orders, indicated

that he is unable to comply, or sought additional time within which

to comply. Menefee’s lack of response, coupled with his failure

to notify the Court of his change of address, suggests that he has

lost interest in and abandoned the prosecution of this action. In

light of Menefee’s failure to prosecute this action and failure to

obey this Court’s orders by timely paying the initial partial

filing fee, it is recommended that this action be DISMISSED without

prejudice pursuant to Rule 41(b) and this Court’s inherent

authority, as it appears no lesser sanction will suffice.3

If Menefee disputes the finding that he failed to comply with

the Court’s orders directing him to pay the initial partial filing

fee by authorizing payment of the filing fee by prison officials,

3 The Court notes that Menefee complains of acts or omissions that

occurred in January 2022. (See Doc. 1). In Alabama, the statute

of limitations for filing a § 1983 action is two years. Jones v.

Preuit & Mauldin, 876 F.2d 1480, 1483 (11th Cir. 1989) (en banc).

Therefore, under the circumstances, dismissal of this action

without prejudice would not be tantamount to dismissal with

prejudice, because Menefee would have the ability to refile his

claims prior to the expiration of the statute of limitations.

he must set forth in an objection to this report and recommendation

the reasons for his failure to pay. See Wilson v. Sargent, 313

F.3d 1315, 1321 (11th Cir. 2002) (finding that allowing objections

to a magistrate judge’s report and recommendation is an acceptable

means of ascertaining the steps taken by a prisoner to comply with

the order to pay a partial filing fee).

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. GenLR 72(c). The

parties should note that under Eleventh Circuit Rule 3-1, “[a]

party failing to object to a magistrate judge’s findings or

recommendations contained in a report and recommendation in

accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the

right to challenge on appeal the district court’s order based on

unobjected-to factual and legal conclusions if the party was

informed of the time period for objecting and the consequences on

appeal for failing to object. In the absence of a proper

objection, however, the court may review on appeal for plain error

if necessary in the interests of justice.” 11th Cir. R. 3-1.

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 done by the Magistrate Judge

is not specific.

DONE this 14th day of July, 2022.

/S/ SONJA F. BIVINS_______

UNITED STATES MAGISTRATE JUDGE