Pannell v. Valenius et al

IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DECOREY PANNELL, 	)
)
Plaintiff, 	)
)
vs. 	) 	CIVIL ACTION NO. 1:25-0012-TFM-N
)
ZAN MICHAEL VALENIUS, et al., 	)
)
Defendants 	)
REPORT AND RECOMMENDATION
Plaintiff Decorey Pannell filed this action under 42 U.S.C. § 1983, without the assistance
of an attorney (pro se) and while detained at Washington County Jail. (Doc. 1). Plaintiff
however has not paid the statutorily required filing fee or a motion to proceed without
prepayment of fees, despite the Court’s order to do so (see Doc. 3), nor has he complied with the
Court’s order to file his claims on the appropriate Court forms for a § 1983 civil action and/or a §
2241 habeas petition (see id.). For this reason, the undersigned RECOMMENDS Plaintiff’s
complaint be DISMISSED without prejudice pursuant to Federal Rule of Civil Procedure
41(b).
I. 	Background.
Plaintiff initiated this action in January of 2025. (Doc. 1). Review of the complaint
revealed deficiencies to be cured before the action could proceed. In response, the Court
informed Plaintiff of the deficiencies, instructed Plaintiff on the legal standards for asserting the
alleged claims in his complaint, and provided Plaintiff with an opportunity to amend his
complaint to state a claim. (See Doc. 4). 	Because Plaintiff alleged facts that raised potential
challenges to his state court proceedings and confinement in jail, the Court also instructed
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Plaintiff on how to file a habeas petition under 28 U.S.C. § 2241. (Id.). Lastly, the Court
ordered Plaintiff to pay the required statutory fee for filing an action in this Court or, if he could
not afford the filing fee, to file a proper motion to proceed without prepayment of fees. (Id.).
Plaintiff was ordered to comply with the Court’s directions by February 10, 2025. (Id.). In the
Court’s order, Plaintiff was cautioned that failure to comply with the order within the prescribed
deadline or failure to advise the Court of a change in address would result in the dismissal of the
action for failure to prosecute and to comply with the Court’s order. (Id. at 4). A copy of the
order was mailed to Plaintiff, but the order was returned by the U.S. Postal Service, stamped as
“RETURN TO SENDER.” (Doc. 6).
To date, Plaintiff has not filed an amended complaint as ordered, a habeas petition, or a
motion to proceed without prepayment of fees. Nor has he communicated with the Court in any
manner. Additionally, it appears that Plaintiff is no longer incarcerated at Washington County
Jail.1 An independent internet search reveals he is also not in the custody of the Alabama
Department of Corrections. However, he did not inform the Court of his release or provide a
new address. Consequently, the Court is unable to locate the whereabouts of Plaintiff.
II. 	Dismissal.
A federal district court is authorized to dismiss a case sua sponte for failure to prosecute
under both Federal Rule of Civil Procedure 41(b) and its inherent power to manage its docket.
Betty K Agencies, Ltd. v. M/V MONADA, 432 F.3d 1333, 1337 (11th Cir. 2005); see also S.D.
Ala. CivLR 41(c) (“Whenever it appears that the Plaintiff is not diligently prosecuting the action,
the Court upon notice may dismiss the action for failure to prosecute, in accordance with
applicable law.”). In the present action, the deadline for compliance with the Court’s order has
1 See http://www.washcoso.com/whos-in-jail/ (last visited May 2, 2025).
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passed, and Plaintiff has failed to file an amended complaint curing the deficiencies of his initial
complaint or otherwise comply with the Court’s order. Plaintiff has also failed to update the
Court as to his release from the Washington County Jail or provide a new address or contact
information. Accordingly, the Court has no means to communicate with Plaintiff.
Upon consideration of these facts and of the alternatives available to the Court, the
undersigned RECOMMENDS this action be DISMISSED without prejudice for failure to
prosecute, under both Rule 41(b) and the Court’s inherent authority, as no other lesser sanction
will suffice. Link v. Wabash R. R., 370 U.S. 626, 630 (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); 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).
III. 	Conclusion.
In accordance with the foregoing analysis, the undersigned RECOMMENDS that
Plaintiff’s complaint be DISMISSED without prejudice; and that final judgment be entered
accordingly under Federal Rule of Civil Procedure 58.
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 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
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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.” 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 2nd day of May 2025.
/s/ KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
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