Opinion
CIVIL CASE NO. 3:20-CV-2745-B-BK
11-16-2020
LOVETH ISIDAEHOMEN, #56683-177, PLAINTIFF, v. UNITED STATES OF AMERICA, ET AL., DEFENDANTS.
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636(b) and Special Order 3, this pro se case was referred to the United States magistrate judge for judicial screening, including the issuance of findings and a recommended disposition where appropriate. For the reasons that follow, this action should be DISMISSED WITHOUT PREJUDICE for failure to comply with a court order.
After construing Plaintiff's filing in her criminal case to raise a civil rights claim, the Court severed said claim into this civil action. The Court subsequently issued a notice of deficiency and order, advising Plaintiff that if she wanted to pursue this severed case, she must, inter alia, file an amended petition on the court-approved form. Doc. 3. See also N.D. Tex. Misc. Ord. 14 (requiring inmates to file civil rights complaints and motions to proceed in forma pauperis on the court-approved forms). However, in response, Plaintiff filed only a partial complaint, most notably omitting the first page with the style of the case and also failing to identify any defendant. Doc. 8.
On October 14, 2020, the Court once again issued a deficiency order advising Plaintiff that, insofar as she sought to proceed with a civil action, she must complete and return an amended civil rights complaint. Doc. 9. The deadline for Plaintiff's response was November 5, 2020. However, Plaintiff has not responded to the Court's second deficiency order, nor has she sought an extension of time to do so.
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 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)).
Plaintiff has been given ample opportunity to respond to the Court's order. She has impliedly refused or declined to do so. Therefore, this action should be DISMISSED WITHOUT PREJUDICE for failure to comply with a court order and for lack of prosecution. See FED. R. CIV. P. 41(b) (an involuntary dismissal "operates as an adjudication on the merits," unless otherwise specified).
SO RECOMMENDED on November 16, 2020.
/s/_________
RENÉE HARRIS TOLIVER
UNITED STATES MAGISTRATE JUDGE
INSTRUCTIONS FOR SERVICE AND
NOTICE OF RIGHT TO APPEAL/OBJECT
A copy of this report and recommendation will be served on all parties in the manner provided by law. Any party who objects to any part of this report and recommendation must file specific written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). An objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge's report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996), modified by statute, 28 U.S.C. § 636(b)(1) (extending the time to file objections to 14 days).