Opinion
No. 3:20-cv-2012-E-BN
10-22-2020
PHEMY MIMIKO, TDCJ No. 2239161, Plaintiff, v. CORPORAL HORN, ET AL. Defendants.
FINDINGS , CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Plaintiff Phemy Mimiko, now a Texas prisoner, filed in the Eastern District of Texas a civil rights complaint asserting that, in 2018, officers at the Navarro County jail used excessive force against him. See Dkt. No. 1. After Mimiko's case was ordered transferred to this Court, see Dkt. No. 3, it was referred to the undersigned United States magistrate judge for pretrial management under 28 U.S.C. § 636(b) and a standing order of reference from United States District Judge Ada Brown.
On August 18, 2020, the undersigned entered a Notice of Deficiency and Order Regarding Filing Fee [Dkt. No. 7] (the "NOD"), observing that
[t]he Court will not screen the complaint until either (1) the $400.00 filing fee is received or (2) Mimiko files a proper motion to proceed in forma pauperis ("IFP") and attaches to that motion a complete and verified certificate of inmate trust account ("CTA"). Accordingly, the Clerk of Court shall send a copy of this order to Mimiko along with a form application to proceed IFP - Prisoner. And it is hereby ORDERED that, if he qualifies to proceed IFP, Mimiko must complete and file an IFP motion no later than September 18, 2020. But if the Court receives the full filing fee before that time, Mimiko may disregard this order, and the Court will screen his complaint.
Failure to either pay the full filing fee or file a proper IFP motion
supported by a complete and verified CTA by September 18, 2020 will result in a recommendation that the complaint be dismissed for failure to prosecute and failure to obey an order of the Court. See FED. R. CIV. P. 41(b).Dkt. No. 7 (emphases omitted).
The Court also CAUTIONS Mimiko that, as the Prison Litigation Reform Act ("PLRA") applies to his case, under the PLRA, "[a] prisoner proceeding IFP in the district court is obligated to pay the full filing fee upon the filing of a complaint. [28 U.S.C.] § 1915(b)(1). No relief from an order directing payment of the filing fee should be granted for a voluntary dismissal." Hatchet v. Nettles, 201 F.3d 651, 654 (5th Cir. 2000) (per curiam) (citing Williams v. Roberts, 116 F.3d 1126, 1128 (5th Cir. 1997); McGore v. Wrigglesworth, 114 F.3d 601, 607 (6th Cir. 1997)); see, e.g., Bays v. United States, No. 3:15-cv-1824-B-BN, 2015 WL 4930913 (N.D. Tex. Aug. 18, 2015).
Now, more than a month past the deadline to comply with the NOD, Mimiko has failed to obey the Court's order or otherwise contact the Court.
Federal Rule of Civil Procedure 41(b) "authorizes the district court to dismiss an action sua sponte for failure to prosecute or comply with a court order." Griggs v. S.G.E. Mgmt., L.L.C., 905 F.3d 835, 844 (5th Cir. 2018) (citing McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988) (per curiam)); accord Nottingham v. Warden, Bill Clements Unit, 837 F.3d 438, 440 (5th Cir. 2016) (failure to comply with a court order); Rosin v. Thaler, 450 F. App'x 383, 383-84 (5th Cir. 2011) (per curiam) (failure to prosecute).
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 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. Cnty. 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)).
The Court's authority under Rule 41(b) is not diluted by a party proceeding pro se, as "[t]he right of self-representation does not exempt a party from compliance with relevant rules of procedural and substantive law." Wright v. LBA Hospitality, 754 F. App'x 298, 300 (5th Cir. 2019) (per curiam) (quoting Hulsey v. Texas, 929 F.2d 168, 171 (5th Cir. 1991) (quoting, in turn, Birl v. Estelle, 660 F.2d 592, 593 (5th Cir. Nov. 1981))).
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 Cnty. 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))).
"When a dismissal is without prejudice but 'the applicable statute of limitations probably bars future litigation,'" that dismissal operates as - i.e., it is reviewed as - "a dismissal with prejudice." Griggs, 905 F.3d at 844 (quoting Nottingham, 837 F.3d at 441); see, e.g., Wright, 754 F. App'x at 300 (affirming dismissal under Rule 41(b) - potentially effectively with prejudice - where "[t]he district court had warned Wright of the consequences and 'allowed [her] a second chance at obtaining service'" but she "disregarded that clear and reasonable order").
In addition to leaving the impression that he no longer wishes to pursue his claims, by not complying with NOD by September 18, 2020, as ordered, Mimiko has prevented this action from proceeding and has thus failed to prosecute his lawsuit. A Rule 41(b) dismissal of this lawsuit without prejudice is warranted under these circumstances. The undersigned concludes that lesser sanctions would be futile, as the Court is not required to delay the disposition of this case until such time as Mimiko decides to obey the Court's order or contact the Court. 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: October 22, 2020
/s/_________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE