Opinion
No. 3-04-CV-2679-P.
January 31, 2005
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 civil rights action brought by James Ross, as Next Friend of Quintin Ross, a Minor, against the Lancaster Independent School District, the Lancaster Police Department, and Officer A. Garcia. By order dated December 22, 2004, the court sua sponte noted that James, who is not a licensed attorney, cannot represent his son in this proceeding. See ORDER, 12/22/04, citing Rodriguez v. EMC Mortgage Corp., 2003 WL 22097231 at *1 (W.D. Tex. Aug. 13, 2003). James was ordered to retain counsel by January 26, 2005, or "the court will recommend that this action be dismissed without prejudice pursuant to Fed.R.Civ.P. 41(b)." Id. To date, a licensed attorney has not entered an appearance on behalf of the minor plaintiff, Quintin Ross. The court now concludes that this case should be dismissed without prejudice.
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 Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992).James Ross has not retained counsel to represent his son in this proceeding. Unless and until a licensed attorney enters an appearance on behalf of the minor plaintiff, this action cannot proceed. See Rodriguez, 2003 WL 22097231 at *1, quoting Cheung v. Youth Orchestra Foundation of Buffalo, Inc., 906 F.2d 59, 61 (2d Cir. 1990) ("It is well settled that a `non-attorney parent must be represented by counsel in bringing an action on behalf of his or her child.'"). Dismissal is required under these circumstances.
The Fifth Circuit has recognized a limited exception to this rule in social security appeals. See Harris v. Apfel, 209 F.3d 413, 415 (5th Cir. 2000). However, the Harris court implicitly adopted the prohibition against pro se representation on behalf of a minor child in other civil actions by distinguishing those cases from social security matters. See Rodriguez, 2003 WL 22097231 at *1.
RECOMMENDATION
This case should be dismissed without prejudice pursuant to Fed.R.Civ.P. 41(b).