Opinion
Civil Action 9:24-CV-52
05-01-2024
BRIAN C. FRANKENFIELD v. WARDEN SMITH, ET AL.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHRISTINE L STETSON UNITED STATES MAGISTRATE JUDGE
Plaintiff Brian C. Frankenfield, a prisoner confined at the Gib Lewis Unit of the Texas Department of Criminal Justice, Correctional Institutions Division, proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983.
The action was referred to the undersigned magistrate judge pursuant to 28 U.S.C. § 636 for findings of fact, conclusions of law, and recommendations for the disposition of the case.
Discussion
On March 28, 2024, Plaintiff was ordered to pay the $405.00 filing fee or submit an application to proceed in forma pauperis within twenty days of the date of the order. As of this date, Plaintiff has not paid the filing fee or requested leave to proceed in forma pauperis.
Federal Rule of Civil Procedure 41(b) authorizes the district court to dismiss an action sua sponte for failure to prosecute or to comply with a court order. Larson v. Scott, 157 F.3d 1030, 1031 (5th Cir. 1998). “The power to invoke this sanction is necessary in order to prevent undue delays in the disposition of pending cases and to avoid congestion in the calendars of the District Courts.” Link v. Wabash R.R., 370 U.S. 626, 629-30 (1962); Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir. 1997).
By choosing not to comply with the court order, Plaintiff has failed to prosecute this action diligently. Accordingly, this action should be dismissed without prejudice for want of prosecution.
Recommendation
This action should be dismissed without prejudice for want of prosecution pursuant to Federal Rule of Civil Procedure 41(b).
Objections
Within fourteen 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 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.