Opinion
2:19-cv-00350-JRG-RSP
12-13-2022
BENNIE EDWARD PIERCE, JR., Plaintiff, v. STATE OF TEXAS, Defendant.
REPORT AND RECOMMENDATION
ROY S. PAYNE, MAGISTRATE JUDGE
Plaintiff Bennie Edward Pierce, Jr. (“Pierce”) filed a complaint in forma pauperis against the State of Texas on October 28, 2019. Pierce has since taken no further action in this case.
Pursuant to 28 U.S.C. § 1915A, the instant suit should be dismissed as frivolous and for failure to state a claim. For example, suit is brought against the State of Texas which is immune under the 11th Amendment to the Constitution from a suit for damages in federal court. Moreover, Pierce claims to have been subject to police brutality without providing any facts to support such a conclusion. For at least these reasons, the complaint should be dismissed.
Further, “[c]ourts have an ‘inherent power' to dismiss cases for lack of prosecution. This power enables courts to ‘manage their own affairs so as to achieve the orderly and expeditious disposition of cases.' ” United States v. Amieva-Rodriguez, 905 F.3d 288, 289 (5th Cir. 2018) (citing Link v. Wabash R. Co., 370 U.S. 626, 630-31, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962) (affirming a district court's dismissal for failure to prosecute)). Because Pierce has failed to further prosecute his claims, the Court recommends that the claims should be DISMISSED without prejudice. In accordance with Campbell v. Wilkinson, the Court further recommends suspending the statute of limitations in this case for a period of sixty (60) days from date of final judgment. 988 F.3d 798, 801 n.1 (5th Cir. 2021) (explaining that “[w]here further litigation of [a] claim will be time-barred, a dismissal without prejudice is no less severe a sanction than a dismissal with prejudice, and the same standard of review is used.'”).
A party's failure to file written objections to the findings, conclusions and recommendations contained in this report within 14 days bars that party from de novo review by the District Judge of those findings, conclusions, and recommendations and, except on grounds of plain error, from appellate review of unobjected-to factual findings and legal conclusions accepted and adopted by the district court. Fed.R.Civ.P. 72(b)(2); see also Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc). Any objection to this Report and Recommendation must be filed in ECF under the event “Objection to Report and Recommendation [cv, respoth]” or it may not be considered by the District Judge.
SIGNED