Opinion
CIVIL ACTION NO. 3:14-cv-3189 SECTION P
03-24-2015
MILTON BANKS LA. DOC#205699 v. KEVIN COBB
JUDGE ROBERT G. JAMES
REPORT AND RECOMMENDATION
Pro se plaintiff Milton Banks filed the instant civil rights complaint pursuant to 42 U.S.C. §1983 on November 5, 2014. When he filed the complaint plaintiff was incarcerated in the Franklin Parish Detention Center and he complained that his rights to practice his chosen religion and to access the courts were interfered with. He sued Franklin Parish Sheriff Kevin Cobb praying for a transfer and for unspecified money damages. This matter has been referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 U.S.C. §636 and the standing orders of the Court.
On January 9, 2015, plaintiff was ordered to amend his complaint within 30 days to provide additional factual support for his claims. Plaintiff has not responded, and has not otherwise been in contact with the Court since he filed his complaint and motion to proceed in forma pauperis on November 5, 2014.
Law and Analysis
Federal Rules of Civil Procedure Rule 41(b) permits dismissal of claims "[i]f the plaintiff fails to prosecute or to comply with these rules or a court order..." The district court also has the inherent authority to dismiss an action sua sponte, without motion by a defendant. Link v. Wabash R.R.Co., 370 U.S. 626, 630-31, 82 S.Ct. 1386, 1388-89, 8 L.Ed.2d 734 (1962). "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 [d]istrict [c]ourts." McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir.1988). The undersigned evaluated the original complaint pursuant to 28 U.S.C. §§1915 and 1915A and directed petitioner to amend and provide the information needed to further evaluate plaintiff's claims. Plaintiff has disregarded the order to amend. Dismissal of the complaint is warranted.
It does not appear that dismissal at this time will result in the complete forfeiture of plaintiff's claims should he desire at some later date to pursue them. Nevertheless, dismissal at this juncture would still be appropriate even if it ultimately "deprives the litigant of the opportunity to pursue his claim." Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1190 (5th Cir. 1992) (internal quotations omitted). Dismissal with prejudice for failure to prosecute or to comply with a court rule or order is warranted where "a clear record of delay or contumacious conduct by the plaintiff exists and a lesser sanction would not better serve the interests of justice." See Millan v. USAA General Indem. Co., 546 F.3d 321, 325 (5th Cir. 2008) (citations and internal quotation marks omitted). In addition, the Fifth Circuit generally requires the presence of at least one of three aggravating factors: "(1) delay caused by [the] plaintiff himself and not his attorney; (2) actual prejudice to the defendant; or (3) delay caused by intentional conduct." Id. The undersigned finds that the requirements for a dismissal with prejudice are satisfied in this case. As previously noted, plaintiff has submitted an inadequate pleading; he was instructed to amend to provide factual support for his conclusory claims; however, he has failed to do so within the time limitation provided. As noted above, the order did not seek a legal brief on plaintiff's part; indeed, the amend order directed him to provide only FACTS and still plaintiff has refused to comply.
Therefore,
IT IS RECOMMENDED that plaintiff's civil rights complaint be DISMISSED WITHOUT PREJUDICE for failure to prosecute in accordance with the provisions of FRCP Rule 41(b).
Under the provisions of 28 U.S.C. Section 636(b)(1)(C) and Rule 72(b), parties aggrieved by this recommendation have fourteen (14) days from service of this report and recommendation to file specific, written objections with the Clerk of Court. A party may respond to another party's objections within fourteen (14) days after being served with a copy of any objections or response to the district judge at the time of filing.
In the event that plaintiff objects to this Report and Recommendation, he should include in his objection a response to the January 9, 2015 Memorandum Order directing him to amend.
Failure to file written objections to the proposed factual findings and/or the proposed legal conclusions reflected in this Report and Recommendation within fourteen (14) days following the date of its service, or within the time frame authorized by Fed.R.Civ.P. 6(b) , shall bar an aggrieved party from attacking either the factual findings or the legal conclusions accepted by the District Court, except upon grounds of plain error. See , Douglass v. United Services Automobile Association , 79 F.3d 1415 (5th Cir. 1996).
In Chambers, Monroe, Louisiana, March 24, 2015.
/s/_________
KAREN L. HAYES
UNITED STATES MAGISTRATE JUDGE