Opinion
2:22-CV-0222-Z-BR
02-13-2023
GILBERT EUGENE PERRY, Plaintiff, v. DIRECTOR, TDCJ-CID, et al., Defendants.
FINDINGS, CONCLUSIONS AND RECOMMENDATION TO DISMISS § 1983 CLAIM
LEE ANN RENO, UNITED STATES MAGISTRATE JUDGE.
On October 19, 2022, Plaintiff Gilbert Eugene Perry tendered to the Clerk a pleading attempting to initiate a § 1983 case. (See 2:22-CV-203-Z-BR, ECF 3). Plaintiff alleged he was being unconstitutionally held for a period of time in excess of his sentence. (Id.). The Court, sua sponte, and after reviewing the matter, redesignated the case as a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. (ECF 4). Plaintiff was subsequently released from custody, thereby mooting the § 2241 action. (Id.). Plaintiff then filed a Motion for Monetary Compensation, which the Court severed into this separate § 1983 action. (ECF 12; ECF 13; see also 2:22-CV-0222-Z-BR, ECF 3). In so ordering, the Court forwarded to Plaintiff the proper documents to initiate the action and directed him to respond by December 21, 2022. (ECF 3).
As of this date, Plaintiff has not responded to the Order or attempted to communicate with the Court in any way. The Court has given Plaintiff ample opportunity to comply with its Order, yet Plaintiff has failed to follow the Court's direct orders. Rule 41(b) of the Federal Rules of Civil Procedure allows a court to dismiss an action sua sponte for failure to prosecute or for failure to comply with the federal rules or any court order. Larson v. Scott, 157 F.3d 1030, 1031 (5th Cir. 1988); see Fed.R.Civ.P. 41. “This authority [under Rule 41(b)] 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., 756 F.2d 399, 401 (5th Cir. 1985) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 82 S.Ct. 1386 (1962)). The undersigned finds Plaintiff's failure to comply with this Court's November 16, 2022 Order warrants dismissal.
RECOMMENDATION
It is the RECOMMENDATION of the United States Magistrate Judge to the United States
District Judge that the Complaint, (ECF 4), filed by Plaintiff Gilbert Eugene Perry be DISMISSED.
INSTRUCTIONS FOR SERVICE
The United States District Clerk is directed to send a copy of this Findings, Conclusions and Recommendation to each party by the most efficient means available.
IT IS SO RECOMMENDED.
* NOTICE OF RIGHT TO OBJECT *
Any party may object to these proposed findings, conclusions and recommendation. In the event parties wish to object, they are hereby NOTIFIED that the deadline for filing objections is fourteen (14) days from the date of filing as indicated by the “entered” date directly above the signature line. Service is complete upon mailing, Fed.R.Civ.P. 5(b)(2)(C), or transmission by electronic means, Fed.R.Civ.P. 5(b)(2)(E). Any objections must be filed on or before the fourteenth (14th) day after this recommendation is filed as indicated by the “entered” date. See 28 U.S.C. § 636(b); Fed.R.Civ.P. 72(b)(2); see also Fed.R.Civ.P. 6(d).
Any such objections shall be made in a written pleading entitled “Objections to the Findings, Conclusions and Recommendation.” Objecting parties shall file the written objections with the United States District Clerk and serve a copy of such objections on all other parties. A party's failure to timely file written objections shall bar an aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings, legal conclusions, and recommendation set forth by the Magistrate Judge and accepted by the district court. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc), superseded by statute on other grounds, 28 U.S.C. § 636(b)(1), as recognized in ACS Recovery Servs., Inc. v. Griffin, 676 F.3d 512, 521 n.5 (5th Cir. 2012); Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988).