Opinion
Civil Action 9:23-CV-188
12-20-2023
DEMETRIUS SHERMAN JOSEPH, SR. v. JOHN DICKERSON, ET AL.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Zack Hawhorn, United States Magistrate Judge
Plaintiff Demetrius Sherman Joseph, Sr., a prisoner confined at the Polunsky Unit of the Texas Department of Criminal Justice, Correctional Institutions Division, proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983.
This action was referred to the undersigned magistrate judge pursuant to 28 U.S.C. § 636 for findings of fact, conclusions of law, and recommendations for the disposition of the case.
Discussion
On October 30, 2023, Plaintiff was ordered to pay an initial partial filing fee of $23.18 within thirty days of the date of the order. As of this date, Plaintiff has not paid the initial partial filing fee.
Federal Rule of Civil Procedure 41(b) authorizes the district court to dismiss an action sua sponte for failure to prosecute or to comply with a court order. Griggs v. S.G.E. Mgmt., 905 F.3d 835, 844 (5th Cir. 2018); Larson v. Scott, 157 F.3d 1030, 1031 (5th Cir. 1998). “The power to invoke this sanction is necessary in order to prevent undue delays in the disposition of pending cases and to avoid congestion in the calendars of the District Courts.” Link v. Wabash R.R., 370 U.S. 626, 629-30 (1962); Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir. 1997).
Plaintiff has failed to prosecute this case diligently because he has not complied with the court order to pay the initial partial filing fee. Accordingly, this action should be dismissed without prejudice for want of prosecution.
Recommendation
This civil rights action should be dismissed without prejudice for want of prosecution pursuant to Federal Rule of Civil Procedure 41(b).
Objections
Within fourteen 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 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.