Opinion
3:04-CV-1232-N.
July 29, 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 in implementation thereof, the subject cause 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 unspecified civil action.
Parties: Plaintiff is a resident of Garland, Texas. Defendant is the Internal Revenue Service. No process has been issued in this case.
Statement of Case: On June 7, 2004, Plaintiff submitted a pleading styled as a complaint together with a motion to proceed in forma pauperis, which was docketed and filed in the above styled and number action.
On June 15, 2004, the magistrate judge filed two orders directed to Plaintiff — the first one ordered him to file an amended complaint in compliance with Rule 8(a), Fed.R.Civ.P., and the second one ordered him to file an affidavit in support of his request to proceed in forma pauperis. A blank affidavit form was transmitted to Plaintiff along with copies of the two orders. The respective orders required that he comply with the terms therein within thirty days. The Rule 8(a) order further placed him on notice that failure to submit a proper complaint would result in a recommendation of dismissal.
On July 15, 2004, Plaintiff filed a pleading (item 6 on the docket) which included the partially completed affidavit form — with two pages missing. He did not submit an amended complaint as required.
Findings and Conclusions: It is self evident that Plaintiff's initial submission — a single page with an attached exhibit — does not comply with Rule 8(a), and that he has failed to file an amended complaint which does comply.
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 (1962)).
Because Plaintiff has been given ample opportunity to submit an amended complaint, but has failed or refused to do so, this action should be dismissed for want of prosecution. RECOMMENDATION:
Because dismissal is recommended, the magistrate judge does not address whether Plaintiff would otherwise be entitled to proceed in forma pauperis.
For the foregoing reasons, it is recommended that the complaint be dismissed without prejudice for want of prosecution pursuant to Federal Rule of Civil Procedure 41(b).
A copy of this recommendation will be mailed to Plaintiff.