Opinion
Civil Action 4:21-cv-01043-O-BP
10-13-2021
VICKI OTIS, Plaintiff, v. STEVEN R. HILL, et al., Defendants.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
HAL R. RAY, JR. UNITED STATES MAGISTRATE JUDGE
On September 10, 2021, Plaintiff, proceeding pro se, filed this civil case with a motion for leave to proceed in forma pauperis. This matter has been referred to the undersigned United States Magistrate Judge for pretrial management pursuant to the provisions of 28 U.S.C. § 636(b) and Special Order No. 3. The findings, conclusions, and recommendation of the United States Magistrate Judge are as follows:
FINDINGS AND CONCLUSIONS:
A. NATURE OF THE CASE
This case is a new civil action.
B. PARTIES
Vicki Otis is the pro se plaintiff. The defendants are listed as Steven R. Hill and family.
C. LEGAL ANALYSIS
On September 10, 2021, Plaintiff filed a long-form (AO 239) motion to proceed in forma pauperis. ECF No. 2. On September 14, 2021, the undersigned alerted Plaintiff to that application's incompleteness and ordered her to correct the deficiency. Notice of Deficiency and Order, 1 ECF No. 6. Plaintiff then filed an amended application. ECF No. 7. But in filing her amended application, Plaintiff switched to the AO 240 short-form affidavit. ECF No. 7. On September 23, 2021, the Court issued a second Notice of Deficiency and Order directing Plaintiff to complete the more-thorough AO 239 long-form application in order for it to assess whether to permit her to proceed without prepaying court costs or fees. ECF No. 8. The Court informed Plaintiff that a template could be found on the Court's website. Pro Se Forms, U.S. DIST.CT.: N. DIST. OF TEX., http://www.txnd.uscourts.gov/forms/pro-se (“Motion to Proceed In Forma Pauperis - Non-Prisoner”). The Court also notified Plaintiff that, alternatively, Plaintiff must pay the $402 filing and administrative fee for this case to proceed. Id. The Court warned Plaintiff that “[f]ailure to comply with this Order may result in a recommendation that Plaintiff's case be dismissed for want of prosecution or for failure to obey a court order under Federal Rule of Civil Procedure 41(b).” Id. at 2. The deadline for Plaintiff to either file the AO 239 long-form application or pay the filing and administrative fee of $402 was October 7, 2021. That deadline has expired and as of the date of these Findings, Conclusions, and Recommendation, Plaintiff has still failed to comply with the Court's September 23, 2021 Notice of Deficiency and Order.
Because Plaintiff has failed to comply with the Court's September 23, 2021 Notice of Deficiency and Order by either completing the AO 239 long-form application or paying the $402 filing and administrative fee, this civil action should be dismissed for want of prosecution and/or for failure to obey a court order under Federal Rule of Civil Procedure 41(b).
RECOMMENDATION
It is therefore RECOMMENDED that United States District Judge Reed O'Connor DENY Plaintiff's motions to proceed in forma pauperis (ECF Nos. 2, 7) and DISMISS this civil 2 action for want of prosecution and/or for failure to obey a court order under Federal Rule of Civil Procedure 41(b).
NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS, AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
A copy of these findings, conclusions, and recommendation shall be served on all parties in the manner provided by law. Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections in the United States District Court to the United States Magistrate Judge's proposed findings, conclusions, and recommendation within fourteen (14) days after the party has been served with a copy of this document. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. § 636(b)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual findings and legal conclusions accepted by the United States District Judge. See Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc), superseded by statute 28 U.S.C. § 636(b)(1) (extending the deadline to file objections from ten to fourteen days). 3