Opinion
No. 3-04-CV-0912-G.
July 9, 2004
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 by Plaintiff Kerry Dnod Jones, a former inmate at the Dallas County Jail, against Dallas Police Officer NFN Castro. On April 29, 2004, plaintiff tendered a complaint to the district clerk and filed an application to proceed in forma pauperis. Because the information provided by plaintiff in his pauper's affidavit indicates that he lacks the funds necessary to prosecute this case, the court granted leave to proceed in forma pauperis and allowed the complaint to be filed. On May 7, 2004, a written questionnaire was sent to plaintiff in order to obtain additional information about the factual basis of his suit. See Spears v. McCotter, 766 F.2d 179, 181 (5th Cir. 1985). Plaintiff was warned that the failure to answer the questionnaire within 20 days "may result in the dismissal of the complaint for failure to prosecute pursuant to Fed.R.Civ.P. 41(b)." No answers were filed. On June 9, 2004, the court gave plaintiff an additional 20 days to answer the questionnaire. Once again, plaintiff was admonished that "the failure to comply with this order may result in the imposition of sanctions, including dismissal of the action for want of prosecution." See ORDER, 6/9/04. On July 6, 2004, the unopened envelope was returned to the clerk with the notation that plaintiff was no longer in the Dallas County Jail. The court now determines that this case should be dismissed without prejudice pursuant to 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).
The court sent written interrogatories to plaintiff at the Dallas County Jail — the only address listed in his complaint. However, plaintiff either has been transferred or released from custody and has not provided the court with his current address. Without this information, the court cannot communicate with plaintiff and this litigation cannot proceed. Dismissal is the only option available under the circumstances.
The form civil rights complaint filed by plaintiff advises that "[i]t is your responsibility to inform the Court of any change of address and its effective date . . . Failure to file a NOTICE TO THE COURT OF CHANGE OF ADDRESS may result in the dismissal of your complaint pursuant to Rule 41(b), Federal Rules of Civil Procedure." Plf. Compl. at 2.
RECOMMENDATION
This case should be dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.