Opinion
Civil Action 1:21-cv-607
12-14-2022
ROBERT ROSS v. UNITED STATES OF AMERICA
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHRISTINE L STETSON, UNITED STATES MAGISTRATE JUDGE
Plaintiff Robert Ross, an inmate confined at the Federal Correctional Complex in Beaumont, Texas, proceeding pro se, brings this lawsuit pursuant to the Federal Tort Claims Act.
The above-styled action was referred to the undersigned magistrate judge pursuant to 28 U.S.C. § 636 and the Local Rules for the Assignment of Duties to the United States Magistrate Judge for findings of fact, conclusions of law, and recommendations for the disposition of the case.
Discussion
Plaintiff failed to include either the full $402.00 filing fee or an Application to Proceed In Forma Pauperis along with his complaint. Accordingly, on December 28, 2021, Plaintiff was ordered to submit either the $402.00 filing fee or an Application to Proceed In Forma Pauperis and a statement certified by an authorized prison official showing the average balance in, and deposits into, Plaintiff's inmate trust account for the preceding six months.
Plaintiff failed to comply with the order of the court, and a Report recommending dismissal for want of prosecution was entered. After no objections to the Report were filed by the parties, the Report was adopted and the action was dismissed on June 8, 2022.
On June 6, 2022, Plaintiff filed objections to the adoption of the Report, asserting he did not receive notice of the Report. On July 18, 2022, Plaintiff's objections were liberally construed as a Motion for Relief from Judgment, and Plaintiff was granted an extension of time to comply with the Order. Plaintiff was ordered to either pay the full filing fee or submit an Application to Proceed In Forma Pauperis within twenty days from the date of the Order.
Federal Rule of Civil Procedure 41(b) authorizes the 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)).
As of this date, Plaintiff has neither paid the $402.00 filing fee nor submitted a properly supported Application to Proceed In Forma Pauperis, as ordered. Accordingly, Plaintiff has failed to diligently prosecute this case. Therefore, this action should be dismissed without prejudice pursuant to Fed.R.Civ.P. 41(b).
Recommendation
This action should be dismissed without prejudice pursuant to Fed.R.Civ.P. 41(b).
Objections
Within fourteen days after being served with a copy 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.