Opinion
Civil Action 9:23-cv-217
02-28-2024
BRIAN C. FRANKENFIELD v. TDCJ, ET AL.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHRISTINE L STETSON UNITED STATES MAGISTRATE JUDGE
Plaintiff Brian C. Frankenfield, an inmate confined at the Lewis Unit of the Texas Department of Criminal Justice, Correctional Institutions Division, proceeding pro se, brought the above-styled lawsuit.
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
On December 5, 2023, Plaintiff was ordered to submit either the full filing fee, $405.00, or an Application to Proceed In Forma Pauperis and a statement certified by an authorized prison official showing the average balance in and deposits into Plaintiff's inmate trust account for the preceding six months. Plaintiff's compliance was due on or before the expiration of twenty (20) days from the date of the order.
The filing fee was changed from $402.00 to $405.00 on December 1, 2023. Therefore, the order should have stated that the filing fee was $402.00 since Plaintiff's complaint was filed on November 17, 2023 in the United States District Court for the Southern District of Texas. There is no indication, however, that Plaintiff attempted to pay either amount.
Federal Rule of Civil Procedure 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., Ltd., 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 failed to either pay the filing fee or submit an Application to Proceed In Forma Pauperis as ordered. Accordingly, Plaintiff has failed to diligently prosecute this case. Therefore, this action should be dismissed without prejudice pursuant to FED. R. CIV. P. 41(b).
Recommendation
This action 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 Servs. Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc); 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72.