Opinion
Civil Action 1:23-CV-260
08-01-2023
TONDOM CLARK v. UNKNOWN DEFENDANT
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHRISTINE L STETSON UNITED STATES MAGISTRATE JUDGE
Plaintiff, Tondom Clark, an inmate formerly confined at USP Beaumont, proceeding pro se, filed this Bivens-type action against an unknown defendant.
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
The above-styled action was referred to the undersigned magistrate judge pursuant to 28 U.S.C. § 636 and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to the United States Magistrate Judge for findings of fact, conclusions of law, and recommendation for the disposition of the case.
Background
This case was severed form Civil Action No. 1:22-CV-444 on July 12, 2023 (doc. # 1). On July 14, 2023, the undersigned ordered the Clerk of Court to mail Plaintiff a copy of the form complaint for a Bivens-type action and the form application to proceed in forma pauperis for prisoners (doc. # 4). The order gave Plaintiff thirty (30) days upon receipt to re-file his complaint and either pay the full filing fee of $402.00 or submit an application to proceed in forma pauperis. Id. On July 31, 2023, a copy of the order was returned as undeliverable with the notation that Plaintiff was no longer at USP Beaumont (doc. # 5).
Discussion
Federal Rule of Civil Procedure 41(b) authorizes a district court to dismiss an action for failure to prosecute or for failure to comply with 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, 629 (1962)). In the present case, Plaintiff has failed to update the court with his current address and has prevented the court from communicating with him.
Recommendation
This Bivens-type action should be dismissed for want of prosecution pursuant to Federal Rule of Civil Procedure 41(b).
Objections
Within fourteen (14) days after receipt of the magistrate judge's report, any party may serve and file written objections to the findings of facts, conclusions of law and recommendations of the magistrate judge. 28 U.S.C. § 636(b)(1)(c).
Failure to file written objections to the proposed findings of facts, conclusions of law and recommendations contained within this report within fourteen (14) days after service shall bar an aggrieved party from the entitlement of de novo review by the district court of the proposed findings, conclusions and recommendations and from appellate review of factual findings and legal conclusions accepted by the district court except on grounds of plain error. Douglass v. United Servs. Auto. Ass'n., 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc); 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72.