Opinion
No. 3:05-CV-0011-H.
February 18, 2005
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 in implementation thereof, this case has been referred to the United States Magistrate Judge. 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 an action brought pursuant to 42 U.S.C. § 1983.
Parties: Plaintiff is an inmate presently confined at the McConnell Unit of the Texas Department of Criminal Justice — Correctional Institution Division in Beeville, Texas. Defendants are Sheriff Jim Bowles, Court Appointed Attorney Tracy Holmes, Judge Harold Entz, Jr., Assistant District Attorney Gina DeBottis, and Director Douglas Dretke. The court has not issued process in this case, however, on January 7, 2005, the magistrate judge issued a questionnaire to Plaintiff. As of the date of this recommendation, Plaintiff has not submitted his answers to the questionnaire. Statement of the Case: The complaint alleges civil rights violations related to Plaintiff's trial and sentencing in Dallas County District Court, as well as his detention at the Dallas County Jail.
Findings and Conclusions: Even liberally construing Plaintiff's pro se complaint, it is clear that his pleadings are insufficient to allege a federal claim. Nonetheless, before deciding whether to issue a recommendation of dismissal pursuant to 28 U.S.C. § 1915A and/or 28 U.S.C. § 1915(e), the magistrate judge issued a supplemental questionnaire to afford Plaintiff the opportunity to present the court with 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 Eason v. Thaler, 14 F.3d 8 (5th Cir. 1994) (requiring further development of insufficient factual allegations before dismissal under § 1915 is proper); Watson v. Ault, 525 F.2d 886, 892-93 (5th Cir. 1976) (affirming use of questionnaire as useful and proper means for court to develop factual basis of pro se plaintiff's complaint). As of the date of this recommendation, Plaintiff has failed timely 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 his 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:
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.
A copy of this recommendation will be mailed to Plaintiff.