Opinion
Civil Action 4:23cv261
10-30-2023
GRAYSON CNTY. HEALTH DEP'T. DEDRICK POLK, #2376179 v.
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
AILEEN GOLDMAN DURRETT UNITED STATES MAGISTRATE JUDGE
Pro se Plaintiff Dedrick Polk filed the above-styled and numbered civil rights lawsuit pursuant to 42 U.S.C. § 1983. The case was referred to the undersigned United States Magistrate Judge for findings of fact, conclusions of law, and recommendations for the disposition of the case 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.
Plaintiff filed a motion for leave to proceed in forma pauperis (Dkt. #3), but did not submit a certified copy of his financial activity from his place of confinement. Accordingly, the court ordered Plaintiff to submit a certified in forma pauperis data sheet reporting trust fund activities for the last six months on July 28, 2023. (Dkt. #6). In response, Plaintiff filed “Grayson County Jail Request Form” on August 16, 2023. (Dkt. #7). On August 18, 2023, the court notified Plaintiff that his submission was insufficient. (Dkt. #8). The court explained that he must submit a resident transaction detail from Grayson County Jail showing both deposits and debits to his account. He was warned that failure to comply may result in the dismissal of his case. In response, Plaintiff sent a notice simply stating, “This is the information requested in letter I received. Receipt #827042-7/31/2023 Combs.” (Dkt. #9). Again, this is not sufficient. Without a certified copy of his financial activity from his current place of confinement, the court is unable to determine if Plaintiff qualifies to proceed in forma pauperis. As of this date, Plaintiff has not complied with the court's Orders; thus, he has failed to prosecute the case. FED. R. CIV. P. 41(b).
A district court may dismiss an action for failure to prosecute or to comply with any order of the court. Campbell v. Wilkinson, 988 F.3d 798, 800 (5th Cir. 2021); FED. R. CIV. P. 41(b). The exercise of the power to dismiss for failure to prosecute is committed to the sound discretion of the court, and appellate review is confined solely to whether the court's discretion was abused. Green v. Forney Eng'g Co., 589 F.2d 243, 247 (5th Cir. 1979); Lopez v. Aransas Cnty. Indep. Sch. Dist., 570 F.2d 541, 544 (5th Cir. 1978). Not only may a district court dismiss for want of prosecution upon motion of a defendant, it may also sua sponte dismiss an action whenever necessary to achieve the orderly and expeditious disposition of cases. Anthony v. Marion Cnty. Gen. Hosp., 617 F.2d 1164, 1167 (5th Cir. 1980).
In the present case, Plaintiff has failed to comply with the court's Orders to submit a certified copy of his financial activity from his current place of confinement (Dkt. ## 6, 8). Accordingly, the case should be dismissed for failure to prosecute. See Jeffery v. Davis, No. 3:20-CV-164-C (BH), 2020 WL 2363458, at *1 (N.D. Tex. Apr. 20, 2020) (“This case should be dismissed without prejudice under Fed.R.Civ.P. 41(b) for failure to prosecute or follow orders of the court[.]”), report and recommendation adopted, No. 3:20-CV-164-C-BH, 2020 WL 2343157 (N.D. Tex. May 11, 2020); see also Wildhaber v. United States, No. 3:19-CV-2045-K (BH), 2020 WL 2544021, at *1 (N.D. Tex. Apr. 20, 2020) (case should be dismissed when Plaintiff failed to comply with the court order that he either pay the filing fee or file an IFP application with a certified inmate trust account), report and recommendation adopted, No. 3:19-CV-2045-K, 2020 WL 2542735 (N.D. Tex. May 19, 2020). Plaintiff has failed to comply with the court's Orders (Dkt. ## 6, 8). Accordingly, the case should be dismissed for failure to prosecute. See FED. R. CIV. P. 41(b).
Dismissal with prejudice for failure to obey an order or failure to prosecute is an extreme sanction that should be employed only when the plaintiff's conduct has threatened the integrity of the judicial process in such a way that leaves the court no choice but to deny the plaintiff benefits. McNeal v. Papasan, 842 F.2d 787, 790 (5th Cir. 1988). A court should consider lesser sanctions, such as fines, costs, damages, conditional dismissals, and dismissals without prejudice, among other lesser measures prior to dismissing a case with prejudice. Id. at 793. In the present case, Plaintiff has failed to comply with the court's Orders to submit a certified copy of his financial transactions from his current place of confinement. However, Plaintiff's intentions and actions do not threaten the judicial process, and a dismissal with prejudice is inappropriate.
CONCLUSION AND RECOMMENDATION
Based on the foregoing, the court recommends that this case be DISMISSED WITHOUT PREJUDICE under Federal Rule of Civil Procedure 41(b). See FED. R. CIV. P. 41(b).
Within fourteen (14) days after service of the magistrate judge's report, any party must serve and file specific written objections to the findings and recommendations of the magistrate judge. 28 U.S.C. § 636(b)(1)(c). 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.
Failure to file specific, written objections will bar the party from appealing the unobjected-to factual findings and legal conclusions of the magistrate judge that are accepted by the district court, except upon grounds of plain error, provided that the party has been served with notice that such consequences will result from a failure to object. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc), superseded by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending the time to file objections from ten to fourteen days).