Opinion
SA-24-CV-591-OLG (HJB)
07-30-2024
OLIVIA D. COUNTY, Plaintiff, v. U.S. JUDGE FRED BIERY, ET AL. Defendants.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Henry J. Bemporad, United States Magistrate Judge
To the Honorable United States District Judge Orlando L. Garcia:
This Report and Recommendation concerns Plaintiffs pro se complaint in the above case. (Docket Entry 1.) This case has been referred to the undersigned for consideration of pretrial matters pursuant to 28 U.S.C. § 636(b). (See Docket Entry 6.) As Plaintiff has neither paid the filing fee, nor sought to proceed in forma pauperis (“IFP”), I recommend that the case be DISMISSED.
A complaint may not proceed in federal court until the plaintiff has either paid the filing fee or has been granted leave to proceed IFP. See 28 U.S.C. §§ 1914,1915. Aplaintiffwho wishes to proceed IFP must submit “an affidavit that includes a statement of all assets [she] possesses” and indicates that she is “unable to pay [filing] fees or give security therefor.” 28 U.S.C. § 1915(a)(1).
Plaintiff filed this suit without paying the filing fee or submitting an IFP application. The undersigned therefore issued a Show Cause Order requiring Plaintiff to do one or the other. (Docket Entry 7.) The Order specifically warned Plaintiff that failure to comply could lead to dismissal of her case for failure to prosecute and comply with the orders of the Court. (Id. at 3. (citing FED. R. CIV. P. 41(b)).) The deadline in the Order has now passed, and Plaintiff has neither paid the filing fee nor sought IFP status. Indeed, she has not responded to the Order at all.
The Order also required Plaintiff to amend her complaint to state a claim under Federal Rule of Civil Procedure 8(a).
Plaintiffs failure to pay the filing fee or seek IFP status “alone is cause to dismiss [her] complaint.” Thomas-EL v. Nissan Motor Acceptance Co., No. H-23-267,2023 WL 6444890, at * 1 (S.D. Tex. Sept. 29, 2023). “Litigants have a constitutional right of access to the courts, but that right is neither absolute nor unconditional.” Butler v. Dep I of Justice, 492 F.3d 440, 445 (D.C. Cir. 2007) (citations and internal quotation marks omitted); In re Winslow, 17 F.3d 314, 318 (10th Cir. 1994) (same). Plaintiffs complaint should therefore be dismissed for failure to pay the filing fee or receive the Court's leave to proceed IFP.
Alternatively, Plaintiffs complaint should be dismissed under Federal Rule of Civil Procedure 41(b). “Under Rule 41(b)... a district court may dismiss a claim sua sponte for failure to prosecute or failure to comply with a court order.” Zinter v. Salvaggio, 610 F.Supp.3d 919, 944 (W.D. Tex. 2022) (citing McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988)), appeal dismissed, No. 22-50700, 2022 WL 18587913 (5th Cir. Nov. 17, 2022). The Court “also has the inherent authority to dismiss an action sua sponte .... [when] necessary ... to prevent undue delays in the disposition of pending cases and to avoid congestion in the calendars of the [d]istrict [c]ourts.” Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir. 1997) (quoting Link v. Wabash R.R., 370 U.S. 626,629-30 (1962)); see Mutuha v. Halliburton Co., 949 F.Supp.2d 677, 687 (S.D. Tex. 2013). Plaintiffs failure to respond to the Court's order, or to take any other corrective action in this case, independently warrants dismissal under Rule 41(b).
For the above reasons, I recommend that Plaintiffs complaint be DISMISSED.
Instructions for Service and Notice of Right to Object.
The United States District Clerk shall serve a copy of this Report and Recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a “filing user” with the Clerk of Court, or (2) by mailing a copy to those not registered by certified mail, return receipt requested. Written objections to this Report and Recommendation must be filed within fourteen (14) days after being served with a copy of same, unless this time period is modified by the district court. 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b).
The parties shall file their objections, if any, with the Clerk of the Court, and serve said objections on all other parties. Absent leave of the Court, objections are limited to twenty (20) pages in length. An objecting party must specifically identify those findings, conclusions, or recommendations to which their objections are being made and articulate the basis for such objections; the district court need not consider frivolous, conclusory or general objections. Battle v. U.S. Parole Comm'n, 834 F.2d 419,421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings, conclusions, and recommendations contained in this Report and Recommendation shall bar the party from a de novo review by the district court. Thomas v. Arn, 474 U.S. 140, 149-52 (1985); Acuna v. Brown & Root, Inc., 200 F.3d 335,340 (5th Cir. 2000). Additionally, failure to file timely written objections to the proposed findings, conclusions, and recommendations contained in this Report and Recommendation shall bar the aggrieved party-except upon grounds of plain error-from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).