Opinion
Civil Action No. 6:06CV85.
April 19, 2006
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Plaintiff David Kenneth Blaylock, an inmate confined at the Smith County Jail, proceeding pro se, filed the above-styled and numbered civil rights lawsuit pursuant to 42 U.S.C. § 1983. The complaint was referred for findings of fact, conclusions of law and recommendations for the disposition of the case.
On March 3, 2006, the Court considered the Plaintiff's application to proceed in forma pauperis in light of the Prison Litigation Reform Act. The Plaintiff was ordered to pay an initial partial filing fee of $12.33 within thirty days. He was warned that the failure to pay the initial partial filing fee or to show that he has insufficient means to pay it may result in the dismissal of the lawsuit. Also on March 3, 2006, the Court issued an Order explaining that the case appears to be frivolous. The Plaintiff was given the opportunity to file an amended complaint in order to show that he has a basis for a potentially meritorious lawsuit. See Eason v. Thaler, 14 F.3d 8 (5th Cir. 1994). He was given thirty days to file the amended complaint. He was warned that the lawsuit may be dismissed if he failed to file the requisite amended complaint. The Court has received an acknowledgment from the Plaintiff revealing that he received the orders on March 14, 2006. The initial partial filing fee of $12.33 and the amended complaint were due on April 13, 2006. As of today, the Plaintiff has not complied with the orders nor provided any explanation for such failure.
A district court may dismiss an action for failure to prosecute or to comply with any order of the court. McCullough v. Lynaugh, 835 F.2d 1126 (5th Cir. 1988); Fed.R.Civ.P. 41(b). The exercise of the power to dismiss a case for failure to prosecute or obey a court order is committed to the sound discretion of the Court and appellate review is confined solely in whether the Court's discretion was abused. Green v. Forney Engineering Co., 589 F.2d 243 (5th Cir. 1979); Lopez v. Aransas County Independent School District, 570 F.2d 541 (5th Cir. 1978). Not only may a district court dismiss for want of prosecution upon motion of a defendant, but it may also, sua sponte, dismiss an action whenever necessary to achieve the orderly and expeditious disposition of cases. Anthony v. Marion County General Hospital, 617 F.2d 1164 (5th Cir. 1980).
Dismissal with prejudice for failure to obey an order or failure to prosecute is an extreme sanction which should be employed only when the "plaintiff's conduct has threatened the integrity of the judicial process [in a way which] leav[es] the court no choice but to deny that plaintiff its benefit." McNeal v. Papasan, 842 F.2d 787, 790 (5th Cir. 1988) (citing Rogers v. Kroger Co., 669 F.2d 317, 321 (5th Cir. 1982)). 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. The explanation for employing a dismissal with prejudice should be stated on the record. Id.
In the present case, the Plaintiff has chosen not to comply with the Court's order in order to proceed on the case. His intentions and actions do not threaten the judicial process and a dismissal with prejudice is inappropriate. The Plaintiff complains about an event that occurred beginning in December, 2005, thus a dismissal without prejudice would not be a de facto dismissal with prejudice because of the statute of limitations. A fine would not be appropriate as a sanction since the Plaintiff is proceeding in forma pauperis. Apparently he does not have the money to pay any fines imposed. A dismissal without prejudice is the best option available at this time.
Recommendation
It is therefore recommended that the complaint be dismissed without prejudice for failure to obey an order of the Court and for failure to prosecute. Fed.R.Civ.P. 41(b); Rule 41, Local Rules for the Eastern District of Texas.
Within ten (10) days after receipt of the magistrate judge's report, any party may serve and file written objections to the findings and recommendations contained in the report.
A party's failure to file written objections to the findings, conclusions and recommendations contained in this Report within ten days after being served with a copy shall bar that party from de novo review by the district judge of those findings, conclusions and recommendations and, except on grounds of plain error, from appellate review of unobjected-to factual findings and legal conclusions accepted and adopted by the district court. Douglass v. United States Auto Ass'n., 79 F.3d 1415, 1430 (5th Cir. 1996) ( en banc).
So ORDERED.