Opinion
No. 3:04-CV-2341-B.
January 6, 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 November 1, 2004, plaintiffs filed the instant action against Mike Pierce and James E. Erwin. No process has been issued in this case. On November 9, 2004, the Court issued a Notice of Deficiency and Order wherein it notified plaintiffs that they had not paid the requisite filing fee or submitted a request to proceed in forma pauperis. It granted them twenty days to cure the deficiency and warned them that the failure to do so would result in a recommendation that this action be dismissed for failure to prosecute. To date, plaintiffs have filed nothing further in this case. Nor have they 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). Plaintiffs have failed to comply with the Order of November 9, 2004, that they correct the noted deficiency within twenty days. They have neither submitted a request to proceed in forma pauperis nor paid the filing fee in this action. Such failures indicate that they have no current intention to proceed with this case. Accordingly, the Court should dismiss the 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).