Opinion
Civil Action 9:22cv37
04-11-2023
MARK SCHWARZER v. CLERK OF COURT REBA D. SQUYRES, ET AL.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
ZACK HAWTHORN, UNITED STATES MAGISTRATE JUDGE
Plaintiff Mark Schwarzer, an inmate confined at the Duncan Unit of the Texas Department of Criminal Justice, Correctional Institutions Division, proceeding pro se, brought the above-styled lawsuit.
The above-styled action was referred to the undersigned magistrate judge pursuant to 28 U.S.C. § 636 and the Local Rules for the Assignment of Duties to the United States Magistrate Judge for findings of fact, conclusions of law, and recommendations for the disposition of the case.
Discussion
On March 16, 2022, plaintiff was ordered to submit either the $402.00 filing fee or an application to proceed in forma pauperis and a statement certified by an authorized prison official showing the average balance in and deposits into plaintiff's inmate trust account for the preceding six months. Plaintiff's compliance was due on or before the expiration of twenty (20) days from the date of the order.
Fed. R. Civ. P. 41(b) authorizes the district court to dismiss an action for failure to prosecute or for failure to comply with any court order. Larson v. Scott, 157 F.3d 1030, 1031 (5th Cir. 1998). “This authority [under Rule 41(b)] flows from the court's inherent power to control its docket and prevent undue delays in the disposition of pending cases.” Boudwin v. Graystone Ins. Co., 756 F.2d 399, 401 (5th Cir. 1985) (citing Link v. Wabash, R.R. Co., 370 U.S. 626, 629 (1962).
On March 25, 2022, plaintiff submitted a notice to the court in which he complains of being ordered to pay the filing fee because he has challenged the order severing this case from his original lawsuit filed in the Tyler division. Additionally, he states he is not prepared to pay additional monies for this case until “certain details have been decided.” A review of the docket in the original action reveals that district court overruled plaintiff's objection to the order of severance and dismissed plaintiff's lawsuit. See Schwarzer v. Clerk of Court Reba D. Squyres, Civil Action No. 6:22cv89 (E.D. Tex. 2022).
As of this date plaintiff has neither paid the $402.00 filing fee nor submitted a properly supported application to proceed in forma pauperis as ordered. Accordingly, plaintiff has failed to diligently prosecute this case. Therefore, this case should be dismissed for want of prosecution pursuant to Fed.R.Civ.P. 41(b).
Recommendation
This case should be dismissed without prejudice pursuant to Fed.R.Civ.P. 41(b).
Objections
Within fourteen days after being served with a copy of the magistrate judge's report, any party may serve and file written objections to the findings of facts, conclusions of law and recommendations of the magistrate judge. 28 U.S.C. § 636 (b)(1)(C).
Failure to file written objections to the proposed findings of facts, conclusions of law and recommendations contained within this report within fourteen days after service shall bar an aggrieved party from the entitlement of de novo review by the district court of the proposed findings, conclusions and recommendations and from appellate review of factual findings and legal conclusions accepted by the district court except on grounds of plain error. Douglass v. United Services Automobile Association, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc); 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72.