Opinion
Civil Action 1:24-CV-90
04-24-2024
ISOM D. ROGERS, III v. FNU SOWELL, et al.,
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
ZACK HAWTHORN UNITED STATES MAGISTRATE JUDGE
Plaintiff, Isom D. Rogers, III, an inmate currently confined at USP Beaumont, proceeding pro se, filed this Bivens-type action against Defendants FNU Sowell, FNU Hebert, FNU Rutledge, and FNU Benitez.
See Bivens v. Six Unknown Named Agents of the 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 from Civil Action No. 1:22-CV-444 on March 8, 2024 (doc. #1). Plaintiff did not pay the full filing fee and did not file an application to proceed in forma pauperis. On March 13, 2024, the undersigned ordered the Clerk of Court to mail Plaintiff a copy of the form application for prisoners to proceed in forma pauperis, and gave Plaintiff thirty (30) days to either pay the full filing fee or complete and file the form application to proceed in forma pauperis accompanied with a certified income trust statement for the preceding six month period, showing the average balance in and deposits made to Plaintiff's inmate trust account (doc. #3). A copy of the order was returned as undeliverable on April 11, 2024, with the notation, “Return to Sender, Unable to Forward.” (doc. #4). The court has yet to receive an updated address or further communication from Plaintiff.
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)). Plaintiff has failed to pay the full filing fee or file a proper application to proceed in forma pauperis and has failed to update the court with his current address. Plaintiff has failed to otherwise communicate with the court and has failed to diligently prosecute his case.
Recommendation
This civil 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.