Opinion
NO. 3-02-CV-1904-N
November 14, 2002
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This case has been referred to the United States magistrate judge pursuant to 28 U.S.C. § 636(b) and a standing order of reference from the district court. The findings and recommendation of the magistrate judge are as follow:
I.
This is a pro se prisoner civil rights action brought under 42 U.S.C. § 1983. Plaintiff Jerrold Don Jones in an inmate in the TDCJ-ID. Defendants are: (1) Judge Gerry Meier; (2) the State of Texas; and (3) Southland Corporation.
On September 4, 2002, plaintiff tendered a standard complaint form used by prisoners in filing civil rights actions. However, he failed to pay the required filing fee or submit an application to proceed in forma pauperis. The court issued a deficiency notice on September 11, 2002. Plaintiff was ordered to pay the required filing fee or seek leave to proceed in forma pauperis within 20 days. No action was taken in response to that order. A second order was mailed to plaintiff on October 16, 2002. Once again, he was warned that the failure to pay the required filing fee or submit an in forma pauperis application within 20 days "may result in the imposition of sanctions, including the dismissal of the complaint for want of prosecution." To date, plaintiff still has not paid the filing fee or sought leave to proceed in forma pauperis. The court now determines that this case should be dismissed without prejudice under Rule 41(b) of the Federal Rules of Civil Procedure.
II.
A district court has authority to dismiss a case for want of prosecution or failure to comply with a court order. FED. R. CIV. P. 41(b); 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 Insurance Co., Ltd., 756 F.2d 399, 401 (5th Cir. 1985), citing Link v. Wabash Railroad Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). Such a dismissal may be with or without prejudice. See Long v. Simmons, 77 F.3d 878, 879-80 (5th Cir. 1996). A dismissal with prejudice is appropriate only if the failure to comply with the court order was the result of purposeful delay or contumacious conduct and the imposition of lesser sanctions would be futile. Id.; see also Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992).
Plaintiff was fully aware of his responsibility to either pay the required filing fee or seek leave to proceed in forma pauperis. He received two court orders to that effect. Plaintiff was told that the failure to pay this fee or show that he cannot do so "may result in the imposition of sanctions, including the dismissal of the complaint for want of prosecution." Despite repeated warnings, plaintiff has failed to pay the filing fee or submit an application to proceed in forma pauperis. Dismissal is clearly warranted under these circumstances.
RECOMMENDATION
Plaintiffs complaint should be dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.