Opinion
Civil Action 1:23cv211
09-18-2023
TONY WASHINGTON, SR. v. OFFICER SOWELL, ET AL.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
ZACK HAWTHORN UNITED STATES MAGISTRATE JUDGE.
Plaintiff Tony Washington, Sr., an inmate confined at the United States Penitentiary located in Florence, Colorado, proceeding pro se, brought the above-styled lawsuit.
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
On June 5, 2023, Plaintiff was ordered to either pay the filing fee or submit an Application to Proceed In Forma Pauperis and a statement certified by an authorized prison official showing his average balance in and deposits into Plaintiff's inmate trust account for the six month period immediately preceding the filing of the complaint. Plaintiff's compliance was due on or before the expiration of twenty (20) days from the date of the order.
On June 26, 2023, Plaintiff filed a motion for extension of time to comply with the preliminary filing fee. On July 6, 2023, the court granted Plaintiff's motion for extension of time, and Plaintiff's compliance with the order was due on or before July 26, 2023.
Fed. R. Civ. P. 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., 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 case should be dismissed for want of prosecution pursuant to FED. R. CIV. P. 41(b).
Recommendation
This case 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.