Opinion
No. 3:02-CV-1750-H
November 13, 2002
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 August 14, 2002, Salvador Losa Reynosa (hereinafter referred to as plaintiff) filed a motion under Fed.R.Crim.P. 41(e) in his criminal case No. 3:92-CR-462-H(06). On August 15, 2002, the Court noted that the criminal proceeding against plaintiff had concluded before he filed his motion. (Order of Aug. 15, 2002, in criminal case.) It thus liberally construed the motion as a civil action under 28 U.S.C. § 1331 seeking the return of property and directed the District Clerk's Office to open a new civil action and file the motion in that action. ( Id.) On August 20, 2002, the Court issued a Notice of Deficiency and Order directing that plaintiff pay the required $150 filing fee or file a proper application to proceed in forma pauperis. The Court accorded plaintiff twenty days from the date of that Order to cure the deficiency. It warned plaintiff, furthermore, that "[f]ailure to comply with this Order will result in a recommendation that the complaint be dismissed for failure to prosecute pursuant to Federal Rules of Civil Procedure 41(b)." To date, plaintiff has filed nothing further in this case. Nor has he 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 August 20, 2002, that he pay the filing fee or submit a proper request to proceed in forma pauperis within twenty days. Such failure indicates that Reynosa has no current intention to proceed with this case. Accordingly, the Court should dismiss his complaint.
III. RECOMMENDATION
For the foregoing reasons, it is recommended that plaintiffs complaint be dismissed without prejudice for want of prosecution pursuant to Fed.R.Civ.P. 41(b).
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on all parties by mailing a copy to each of them. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to object to these findings, conclusions, and recommendation must file and serve written objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings, conclusions, or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. Failure to file written objections to the proposed findings, conclusions, and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) ( en banc).