Opinion
No. 3:04-CV-1615-N.
August 26, 2004
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b) and an order of the District Court, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge follow:
Statement of Case:
On July 26, 2004, Petitioner filed this suit seeking an "emergency mandatory injunction." On August 3, 2004, the District Court referred this case to the United States Magistrate Judge. On August 10, 2004, the Court sent Plaintiff a notice setting the "motion for emergency mandatory injunction" for hearing on August 25, 2004 at 10:00 A.M. The Court called the motion for hearing, but Plaintiff failed to appear.
Discussion:
Rule 41(b) of the Federal Rules of Civil Procedure allows a court to dismiss an action sua sponte for failure to prosecute or for failure to comply with the federal rules or any court order. Larson v. Scott, 157 F.3d 1030, 1031 (5th Cir. 1998). "This authority [under Rule 41(b)] flows from the court's inherent power to control its docket and prevent undue delays in the disposition of pending cases." Boudwin v. Graystone Ins. Co., Ltd., 756 F.2d 399, 401 (5th Cir. 1985) (citing Link v. Wabash, R.R. Co., 370 U.S. 626, 82 S.Ct. 1386 (1962)). Petitioner has failed to appear for the hearing this Court set on his "motion for emergency mandatory injunction." When a plaintiff files a motion for emergency relief, this Court takes the motion seriously and modifies its docket to set an expedited hearing. Plaintiff's total failure to appear demonstrates a lack of interest in his case, as well as direct disobedieance of a Court order. Accordingly, this case should be dismissed for want of prosecution.
The Court also notes deficiencies in Plaintiff's "Affidavit of Inability to Pay Filing Fees" and in his "Original Petition," but the Court need not address those deficiencies in light of Plaintiff's failure to appear.
RECOMMENDATION:
The Court recommends that this case be dismissed without prejudice for want of prosecution, pursuant to FED. R. CIV. P. 41(b).