Opinion
Civil Action 1:23-CV-130
09-25-2023
MARVIN EUGENE GATES, JR. v. CHRISTOPHER L . NORSWORTHY
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Zack Hawthorn United States Magistrate Judge
Plaintiff, Marvin Eugene Gates, an inmate formerly confined at the Stiles Unit with the Texas Department of Criminal Justice, Correctional Institutions Division, proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983 against Defendant Christopher L. Norsworthy.
The above-styled action was referred to the undersigned magistrate judge pursuant to 28 U.S.C. § 636 and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to the United States Magistrate Judge for findings of fact, conclusions of law, and recommendation for the disposition of the case.
Background
On July 18, 2023, the undersigned ordered Plaintiff to replead his cause of action (doc. # 20). Plaintiff acknowledged receipt of the order on July 27, 2023 (doc. # 21). On August 30, 2023, Plaintiff notified the court of a change of address (doc. # 22) and then filed a Notice of Filing Affidavit on August 31, 2023 (doc. # 23). The latter informs the court of new allegations and does not respond to the specific questions in the order to replead. Plaintiff has failed to comply with the court's July 18, 2023, order.
Discussion
Federal Rule of Civil Procedure 41(b) authorizes a 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)). In the present case, Plaintiff has failed to respond to this court's order to replead. Plaintiff has failed to diligently prosecute his case.
Recommendation
This civil rights action filed pursuant to 42 U.S.C. § 1983 should be dismissed for want of prosecution pursuant to Federal Rule of Civil Procedure 41(b).
Objections
Within fourteen (14) days after receipt 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 (14) 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.