Opinion
No. 3:18-cv-1612-B-BN
09-14-2018
CRYSTAL LYNN, Plaintiff, v. TEXAS FAMILY & PROTECTIVE SERVICES, Defendant.
FINDINGS , CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Plaintiff Crystal Lynn has filed a pro se complaint against a state agency alleging that the agency has violated her civil rights. See Dkt. No. 3. This resulting action has been referred to the undersigned United States magistrate judge for screening under 28 U.S.C. § 636(b) and a standing order of reference from United States District Judge Jane J. Boyle. The undersigned enters these findings of fact, conclusions of law, and recommendation that, for the reasons stated below, the Court should dismiss this action without prejudice under Federal Rule of Civil Procedure 41(b).
Applicable Background
Lynn filed this action on June 20, 2018. See Dkt. No. 3. And, on June 25, 2018, the Court entered a Notice of Deficiency and Order [Dk. No. 4] (the "NOD") providing in substance:
First, because Lynn has failed to either pay the $400.00 statutory filing fee or move for leave to proceed in forma pauperis ("IFP"), the Clerk
of Court shall send to Lynn, along with this order, a form application for leave to proceed IFP. And Lynn is instructed to cure this deficiency - by either paying the full filing fee or, if she so qualifies, filing a properly supported IFP motion - no later than July 26, 2018. Failure to take either action by that date, will result in a recommendation that this action be dismissed for failure to prosecute and obey orders of the Court. See FED. R. CIV. P. 41(b).Id. (citations omitted).
Further, Lynn's complaint as presently submitted is subject to summary dismissal.
To the extent that she is suing the "Texas Family and Protective Services," which the Court liberally construes to be the Texas Department of Family Protective Services ("TDFPS") - or an employee of that agency in that employee's official capacity - that claim is barred by the Eleventh Amendment.
Next, to the extent that she is stating a civil rights claim against an unnamed state employee in that employee's individual capacity - which is not at all apparent based on the factual allegations of the complaint - the complaint does not comply with the applicable pleading standards. Under Federal Rule of Civil Procedure 8(a)(2), a complaint need not contain detailed factual allegations, but a plaintiff must allege more than labels and conclusions, and, while a court must accept all of the plaintiff's allegations as true, it is "'not bound to accept as true a legal conclusion couched as a factual allegation.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A threadbare or formulaic recitation of the elements of a cause of action, supported by mere conclusory statements, will not suffice. See id. But, to survive dismissal under Twombly and Iqbal, a plaintiff need only "plead facts sufficient to show" that the claims asserted have "substantive plausibility" by stating "simply, concisely, and directly events" that a plaintiff contends entitle him or her to relief. Johnson v. City of Shelby, Miss., 574 U.S. ___, 135 S. Ct. 346, 347 (2014) (per curiam) (citing FED. R. CIV. P. 8(a)(2)-(3), (d)(1), (e)).
To remedy this deficiency, attached to this order is a form Complaint for Violation of Civil Rights (Non-Prisoner Complaint), which Lynn shall complete, date and sign, and return to the Court no later than July 26, 2018. Failure to follow this instruction will also result in a recommendation that this action be dismissed for failure to prosecute and obey orders of the Court. See FED. R. CIV. P. 41(b).
It is now more than one month past the deadline for Lynn to pay the filing fee or move for leave to proceed IFP and file an amended complaint, as required by the NOD - and almost three months since she filed this action - and Lynn has yet to comply with the Court's order or otherwise contact the Court.
Legal Standards and Analysis
Under Federal Rule of Civil Procedure 41(b), "a district court may dismiss an action sua sponte if the plaintiff fails to comply with court orders." Nottingham v. Warden, Bill Clements Unit, 837 F.3d 438, 440 (5th Cir. 2016) (citing FED. R. CIV. P. 41(b); McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988) (per curiam)). And the same rule authorizes a district court to "sua sponte dismiss an action for failure to prosecute." Rosin v. Thaler, 450 F. App'x 383, 383-84 (5th Cir. 2011) (per curiam) (citations omitted)). That 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)); see also Lopez v. Ark. Cty. Indep. Sch. Dist., 570 F.2d 541, 544 (5th Cir. 1978) ("Although [Rule 41(b)] is phrased in terms of dismissal on the motion of the defendant, it is clear that the power is inherent in the court and may be exercised sua sponte whenever necessary to 'achieve the orderly and expeditious disposition of cases.'" (quoting Link, 370 U.S. at 631)).
A Rule 41(b) dismissal may be with or without prejudice. See Long v. Simmons, 77 F.3d 878, 879-80 (5th Cir. 1996).
Although "[l]esser sanctions such as fines or dismissal without prejudice are usually appropriate before dismissing with prejudice, ... a Rule 41(b) dismissal is appropriate where there is 'a clear record of delay or
contumacious conduct by the plaintiff and when lesser sanctions would not serve the best interests of justice.'"Nottingham, 837 F.3d at 441 (quoting Bryson v. United States, 553 F.3d 402, 403 (5th Cir. 2008) (per curiam) (in turn quoting Callip v. Harris Cty. Child Welfare Dep't, 757 F.2d 1513, 1521 (5th Cir. 1985))); see also Long, 77 F.3d at 880 (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); cf. Nottingham, 837 F.3d at 442 (noting that "lesser sanctions" may "'include assessments of fines, costs, or damages against the plaintiff, conditional dismissal, dismissal without prejudice, and explicit warnings'" (quoting Thrasher v. City of Amarillo, 709 F.3d 509, 514 (5th Cir. 2013))).
By not responding to the NOD, as ordered by the Court, and thereby preventing this action from proceeding, Lynn has failed to prosecute her lawsuit and also has failed to obey a court order. A Rule 41(b) dismissal of this lawsuit without prejudice is warranted under these circumstances. And the undersigned concludes that lesser sanctions would be futile. The Court is not required to delay the disposition of this case until such time as Lynn decides to comply with the Court's order. The Court should therefore exercise its inherent power to prevent undue delays in the disposition of pending cases and sua sponte dismiss this action without prejudice.
Recommendation
The Court should dismiss this action without prejudice under Federal Rules of Civil Procedure 41(b).
A copy of these findings, conclusions, and recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of these findings, conclusions, 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). In order to be specific, 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 findings, conclusions, 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 Servs. Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).
DATED: September 14, 2018
/s/_________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE