Opinion
Civil Action 2:22-CV-00042
05-16-2022
LINDSAY SHELTON, Plaintiff, v. THE STATE OF TEXAS, et al., Defendants.
MEMORANDUM AND RECOMMENDATION TO DISMISS CASE FOR FAILURE TO PROSECUTE
JULIE K. HAMPTON UNITED STATES MAGISTRATE JUDGE
Plaintiff Lindsay Shelton has filed this lawsuit in the United States District Court for the Southern District of Texas, Corpus Christi Division, although it is directed to the Fifth Circuit Court of Appeals. Plaintiff is proceeding pro se and in forma pauperis. Plaintiff has sued the State of Texas and Nueces County, Texas County Court at Law Number 5 Judge Timothy McCoy. The lawsuit seemingly has to do with a proceeding where Plaintiff Shelton's parental rights were allegedly terminated.
In an Order Directing Plaintiff to File and Amended Complaint issued on March 8, 2022, Plaintiff was Ordered to submit an Amended Complaint within thirty days. (D.E. 4). Plaintiff was warned that failure to comply with Order in a timely manner may result in the case being dismissed for want of prosecution. (D.E. 4).
Plaintiff failed to comply with the Order Directing that an Amended Complaint be submitted. On April 19, 2022, the undersigned Ordered Plaintiff to show cause within twenty days why his civil rights action should not be dismissed for want of prosecution. (D.E. 5). The undersigned instructed Plaintiff that he could successfully show cause “by filing an Amended Complaint as previously Ordered by this Court.” (D.E. 5, p. 1). Plaintiff was warned that his failure to comply with the Show Cause Order would result in a recommendation to the District Court that this action be dismissed. (D.E. 5, p. 2).
A district court has authority to dismiss a case for want of prosecution or for failure to comply with a court order. Fed.R.Civ.P. 41(b); see also Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir. 1997) (holding district courts have the power to sua sponte dismiss a cause of action for failure to prosecute). To date, Plaintiff has not responded to the March 8, 2022 Order Directed an Amended Complaint to be filed or the April 19, 2022 Show Cause Order. Plaintiff has repeatedly failed to follow court orders and submit the requested information. Dismissal is therefore warranted under these circumstances.
Accordingly, it is respectfully recommended that Plaintiff's case be DISMISSED WITHOUT PREJUDICE pursuant to Rule 41(b).
NOTICE TO PARTIES
The Clerk will file this Memorandum and Recommendation and transmit a copy to each party or counsel. Within FOURTEEN (14) DAYS after being served with a copy of the Memorandum and Recommendation, a party may file with the Clerk and serve on the United States Magistrate Judge and all parties, written objections, pursuant to Fed.R.Civ.P. 72(b), 28 U.S.C. § 636(b)(1), General Order No. 2002-13, United States District Court for the Southern District of Texas.
A party's failure to file written objections to the proposed findings, conclusions, and recommendation in a magistrate judge's report and recommendation within FOURTEEN (14) DAYS after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996)(en banc).