Opinion
No. 3:02-MC-0006-R
April 29, 2002
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, this case has been referred to the United States Magistrate Judge. The findings, recommendation of the Magistrate Judge follow:
FINDINGS AND CONCLUSIONS:
On January 29, 2002, Plaintiff filed a "motion for leave to proceed' access to the federal electronic filing system known as PACER." Based upon the contained in Plaintiff's in forma pauperis motion, the Court was unable to determine whether Plaintiff should be allowed to proceed in forma pauperis. On February 8, 2002 therefore, the Court sent Plaintiff a more detailed in forma pauperis affidavit, and ordered Plaintiff to respond to the affidavit and to show good cause why the Court should exempt him from the PACER fees. The Court's Order stated that failure to respond within thirty (30) days would result in a recommendation that Plaintiff's complaint be dismissed. More than thirty (30) days have passed since the Court's Order and Plaintiff has failed to respond.
Discussion: 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)). Plaintiff has failed to comply with the Court's Order. Accordingly, her complaint should be dismissed for want of prosecution.
RECOMMENDATION:
The Court recommends that the complaint be dismissed without prejudice for want of prosecution, pursuant to Fed.R.Civ.P. 41(b).
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a copy of these findings, conclusions and recommendation on Plaintiff by mailing a copy to him by United States Mail. Pursuant to Title 28, United States Code, Section 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must serve and file written objections within ten days after being served with a copy. A party filing objections must specifically identify those findings, conclusions or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. A party's failure to file such written objections to these proposed findings, conclusions and recommendation shall bar that party from a de novo determination by the District Court. See Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 472 (1985). Additionally, any failure to file written objections to the proposed findings, conclusions and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error.Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).