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Avery v. Dallas County Jail

United States District Court, N.D. Texas, Dallas Division
Apr 28, 2004
No. 3:03-CV-1967-K (N.D. Tex. Apr. 28, 2004)

Opinion

No. 3:03-CV-1967-K.

April 28, 2004


FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE


Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the District Court filed on February 2, 2004, this cause has been re-referred to the United States Magistrate Judge following its reinstatement. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:

FINDINGS AND CONCLUSIONS:

Type of Case: This is a pro se civil rights action brought pursuant to 42 U.S.C. § 1983.

Parties: Plaintiff is presently residing in Duncanville, Texas. Defendants are the Dallas County Jail and John Doe officers.

Findings and Conclusions: On March 9, 2004, following the reinstatement of this action and the dismissal of Plaintiff's appeal, the magistrate judge issued a questionnaire to afford Plaintiff the opportunity to present the court sufficient facts to demonstrate the existence of a federal claim. The Fifth Circuit Court of Appeals has approved the use of questionnaires as a proper method to develop the factual basis of a pro se complaint. See Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999) (reaffirming use of questionnaire as useful and proper means for court to develop factual basis of pro se plaintiff's complaint); Eason v. Thaler, 14 F.3d 8 (5th Cir. 1994) (same); Watson v. Ault, 525 F.2d 886, 892-93 (5th Cir. 1976) (same). As of the date of this recommendation, Plaintiff has failed to respond to the Magistrate Judge's questionnaire.

Rule 41(b), of the Federal Rules of Civil Procedure, allows a court to dismiss an action sua sponte for failure to prosecute or for failure to comply with the federal rules or 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, 82 S.Ct. 1386 (1962)). Because Plaintiff has been given ample opportunity to submit her answers to the magistrate judge's questionnaire, but has failed or refused to do so, this action should be dismissed for want of prosecution. RECOMMENDATION:

This is the second time which the undersigned recommends dismissal of this case due to Plaintiff's failure to answer the magistrate judge's questionnaire. See Findings, Conclusions and Recommendation filed on November 6, 2003, and Order of Adoption and Judgment filed on December 18, 2003, which were later vacated due the reinstatement of this case.

For the foregoing reasons, it is recommended that the complaint be dismissed without prejudice for want of prosecution pursuant to Rule 41(b), Federal Rules of Civil Procedure.


Summaries of

Avery v. Dallas County Jail

United States District Court, N.D. Texas, Dallas Division
Apr 28, 2004
No. 3:03-CV-1967-K (N.D. Tex. Apr. 28, 2004)
Case details for

Avery v. Dallas County Jail

Case Details

Full title:NINA E. AVERY, Plaintiff, v. DALLAS COUNTY JAIL, et al., Defendants

Court:United States District Court, N.D. Texas, Dallas Division

Date published: Apr 28, 2004

Citations

No. 3:03-CV-1967-K (N.D. Tex. Apr. 28, 2004)