Opinion
No. 3-04-CV-1462-D.
October 28, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This case has been referred to the United States magistrate judge for initial screening pursuant to 28 U.S.C. § 636(b) and a standing order of reference from the district court. For the reasons stated herein, the claims brought by Lester Jon Ruston, Michael Bannister, Edward Anthony Teal, and Orlando Espindola should be dismissed without prejudice.
I.
This is a putative civil rights class action brought by six current or former inmates at the Dallas County Jail. On July 7, 2004, plaintiffs tendered a one-page handwritten complaint accusing defendants of conspiring to, inter alia: (1) deprive them of medical care; (2) expose them to assaults, battery, slander, and abuse of process; (3) retaliate against them for filing grievances; and (4) suppress their right to free speech, freedom of religion, and freedom of the press. Because the handwritten complaint did not comply with Fed.R.Civ.P. 8(a) and was signed only by Lester Jon Ruston, the court ordered each plaintiff to file a complaint on the standard form used by prisoners in section 1983 actions. Plaintiffs also were ordered to either pay the statutory filing fee or seek leave to proceed in forma pauperis. This order was sent to plaintiffs at the Dallas County Jail on July 9, 2004.
On July 15, 2004, plaintiffs submitted a two-page typewritten complaint signed by Ruston, Wyndol Eugene Blackmon, Michael Bannister, Edward Anthony Teal, Ronald Combs, and Orlando Espindola. However, the complaint was not filed on the proper form. Nor did any of the plaintiffs pay the statutory filing fee or seek leave to proceed in forma pauperis. The court notified each plaintiff of these deficiencies by order dated August 11, 2004. Although Ruston, Bannister, and Teal subsequently filed separate complaints on the proper form and motions to proceed in forma pauperis, none of these plaintiffs submitted certified copies of their inmate trust account statement as required by 28 U.S.C. § 1915(a)(2). Espindola failed to cure any of the deficiencies identified by the court. On September 9, 2004, the court ordered Ruston, Bannister, and Teal to submit inmate trust account certificates. Espindola again was directed to either pay the statutory filing fee or seek leave to proceed in forma pauperis. Each plaintiff was warned that the failure to cure these defects within 20 days "will result in a recommendation that the complaint be dismissed for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b)." See NOTICE OF DEFICIENCY AND ORDER, 9/9/04.
This statute provides, in pertinent part:
A prisoner seeking to bring a civil action . . . without prepayment of fees or security therefor, in addition to filing the affidavit [for leave to proceed in forma pauperis], shall submit a certified copy of the trust account statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing of the complaint . . . obtained from the appropriate official of each prison at which the prisoner is or was confined.28 U.S.C. § 1915(a)(2).
On September 21, 2004, the envelope containing the deficiency notice sent to Teal was returned to the district clerk unopened with the notation "Not in Dallas County Jail." To date, Ruston and Bannister still have not submitted certified copies of their inmate trust account statements and Espindola has failed to pay the statutory filing fee or seek leave to proceed in forma pauperis. The court now determines that the claims brought by these plaintiffs should be dismissed without prejudice pursuant to Fed.R.Civ.P. 41(b).
Two other plaintiffs, Wyndol Eugene Blackmon and Ronald Combs, also have failed to submit certified copies of their inmate trust account statements. However, both plaintiffs, neither of whom are still incarcerated in the Dallas County Jail, have communicated with the court regarding their attempts to obtain inmate trust account statements from the appropriate authorities. Therefore, the magistrate judge does not recommend dismissal of the claims brought by Blackmon and Combs at this time.
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).
The court sent deficiency notices to Ruston, Bannister, Espindola, and Teal at the Dallas County Jail — the only address listed in their complaints. Teal either has been transferred or released from custody and has not provided the court with his current address. The other plaintiffs were ordered to submit certified copies of their inmate trust account statements by a date certain and warned of the consequences of failing to comply with that order. Despite this warning, Ruston, Bannister, and Espindola still have not submitted inmate trust account statements or communicated with the court regarding their efforts to obtain these statements from jail officials. Without this information, the court cannot rule on plaintiffs' applications to proceed in forma pauperis and this case cannot proceed. Dismissal is clearly warranted under these circumstances. See Talley v. Owen, 2004 WL 212554 at *1 (N.D. Tex. Jan. 20, 2004), rec. adopted, 2004 WL 307436 (N.D. Tex. Feb. 11, 2004) (dismissing pro se prisoner civil rights action where plaintiff failed to comply with two court orders requiring him to submit inmate trust account statement by date certain); Benali v. Ashcroft, 2003 WL 193081 at * 1 (N.D. Tex. Jan. 22, 2003) (dismissing pro se complaint where petitioner failed to notify court of current address).
The form civil rights complaint filed by Teal advises that "[i]t is your responsibility to inform the Court of any change of address and its effective date . . . Failure to file a NOTICE TO THE COURT OF CHANGE OF ADDRESS may result in the dismissal of your complaint pursuant to Rule 41(b), Federal Rules of Civil Procedure." Teal Compl. at 2.
RECOMMENDATION
The claims brought by Plaintiffs Lester Jon Ruston, Michael Banister, Edward Anthony Teal, and Orlando Espindola should be dismissed without prejudice. The court should find that there is no just reason for delay and direct the entry of a final judgment against these plaintiffs in accordance with Fed.R.Civ.P. 54(b).