Opinion
No. 3-02-CV-1720-D
November 19, 2002
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This case has been referred to the United States magistrate judge pursuant to 28 U.S.C. § 636 (b) and a standing order of reference from the district court. The findings and recommendation of the magistrate judge are as follow:
I.
This is a pro se prisoner civil rights action brought under 42 U.S.C. § 1983. Plaintiff Charles Petty alleges that "[t]he County and State Board of Pardons and Paroles Division made no legal effort to confirm by investigating their conceal culpability in the poor maintenance by giving a injustice instruction denying due process as applies to its case were no rational connection between the predicate fact and the elemental fact." (Plf. Compl. at 4, ¶ V).
Plaintiff also references an exhibit that is not attached to his complaint.
Plaintiff tendered an application for leave to proceed in forma pauperis and a standard complaint form used by prisoners in filing civil rights actions. The information provided by plaintiff in his pauper's affidavit indicates that he lacks the funds necessary to prosecute this case. The court granted leave to proceed in forma pauperis and allowed the complaint to be filed. On August 22, 2002, written interrogatories were sent to plaintiff in order to obtain additional information about the factual basis of his suit. See Spears v. McCotter, 766 F.2d 179, 181 (5th Cir. 1985). The next day, plaintiff notified the court that his address had changed. The interrogatories were remailed to plaintiff at his new address on September 4, 2002. Plaintiff was warned that the failure to file written answers within 20 days would result in the dismissal of his case. No answers were filed. On October 4, 2002, the court sent a duplicate set of interrogatories to plaintiff. Once again, he was warned that the failure to answer the interrogatories in a timely manner "may result in the dismissal of the complaint for want of prosecution." See ORDER, 10/4/02. To date, the interrogatories remain unanswered. The court now concludes that this case should be dismissed.
II.
A district court has authority to dismiss a case for want of prosecution or failure to comply with a court order. FED. R. CIV. P. 41(b); Larson v. Scott, 157 F.3d 1030, 1031 (5th Cir. 1998). 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 Insurance Co., Ltd., 756 F.2d 399, 401 (5th Cir. 1985), citing Link v. Wabash Railroad Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). Such a dismissal may be with or without prejudice. See Long v. Simmons, 77 F.3d 878, 879-80 (5th Cir. 1996). 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. Id.; see also Berty v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992).
The court sent written interrogatories to plaintiff over two months ago. Plaintiff has not answered the interrogatories despite repeated warnings that his failure to do so would result in the dismissal of the case. The court must obtain additional information about the factual basis of this complaint before process is issued to the defendant. The inability to proceed with this litigation is directly attributable to plaintiff's failure to provide interrogatory answers. Dismissal is clearly warranted under these circumstances.
RECOMMENDATION
This case should be dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.