Opinion
No. 3:04-CV-2089-N.
May 5, 2005
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
I. BACKGROUND
On September 27, 2004, plaintiff filed the instant civil action and moved to proceed in forma pauperis. The Court found that the motion to proceed in forma pauperis should be denied based upon plaintiff's financial status. ( See Order of Jan. 25, 2005, at 1-2.) However, the Court deemed it appropriate to grant plaintiff thirty days to pay the full filing fee of $150.00 to the Clerk of the Court before recommending that in forma pauperis be denied. ( Id.) The Court also admonished plaintiff that failure to pay the filing fee within the time allotted would result in a recommendation that in forma pauperis be denied and that this action be dismissed without prejudice for failure to comply with a court order under Fed.R.Civ.P. 41(b). ( Id.) To date, plaintiff has not paid the requisite filing fee.
II. INVOLUNTARY DISMISSAL
Rule 41(b) of the Federal Rules of Civil Procedure permits a court to dismiss sua sponte an action for failure to prosecute or follow orders of the court. McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988). This authority flows from a court's inherent power to control its docket, prevent undue delays in the disposition of pending cases, and avoid congested court calendars. Link v. Wabash R.R. Co., 370 U.S. 626, 629-31 (1962). Plaintiff has failed to comply with the Order of January 25, 2005, that she pay the filing fee within thirty days. Accordingly, the Court should dismiss her complaint without prejudice for failure to follow orders of the Court.
III. RECOMMENDATION
For the foregoing reasons, it is recommended that the Court deny plaintiff's motion to proceed in forma pauperis and dismiss her complaint without prejudice for failure to comply with an order of the Court pursuant to Fed.R.Civ.P. 41(b).