Opinion
Civil Action 9:23cv111
09-19-2023
FRANK J. CASTANEDA v. DONALD MUNIZ, ET AL.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Zack Hawhorn United States Magistrate Judge
Plaintiff Frank J. Castaneda, an inmate confined at the Wainwright Unit, proceeding pro se, brought the above-styled action.
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 submitted an application to proceed in forma pauperis in this action. A review of the application revealed plaintiff should pay an initial partial filing fee. Accordingly, on August 3, 2023, plaintiff was ordered to pay an initial partial filing fee of $10.83 within thirty (30) days. Plaintiff was notified he would thereafter be required to pay the balance of the $350.00 filing fee.
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 not paid the initial partial filing fee as ordered. Therefore, plaintiff has failed to diligently prosecute this action. Accordingly, 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 Services Automobile Association, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc); 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72.
SIGNED this 19th day of September, 2023.