Starks v. Bowles

Full title: DAVID M STARKS, #01096535, Plaintiff, v. JIM BOWLES, Defendant

Court: United States District Court, N.D. Texas, Dallas Division

Date published: Apr 14, 2004

No. 3:03-CV-2636-K (N.D. Tex. Apr. 14, 2004)

Opinion

No. 3:03-CV-2636-K.

April 14, 2004

FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

PAUL STICKNEY, Magistrate Judge

This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of Title 28, United States Code, Section 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions and Recommendation of the United States Magistrate Judge follow:

FINDINGS AND CONCLUSIONS I. FACTUAL BACKGROUND

On October 28, 2003, Plaintiff filed this complaint alleging that Defendants violated his civil rights. On November 4, 2003, the Court sent Plaintiff a notice of deficiency for failure to either pay the filing fee or file a proper request to proceed in forma pauperis. On November 12, 2003, Plaintiff filed a motion to proceed in forma pauperis, but he failed to include a certified statement of the balance in his inmate trust account. On November 17, 2004, the Court informed Plaintiff that failure to submit the trust account information within twenty days could result in a recommendation that this complaint be dismissed. On December 4, 2003, the notice was returned to the Court because Plaintiff was no longer in the Dallas County Jail. Plaintiff did not provide an alternative address. On January 9, 2004, Plaintiff submitted a new address. On January 14, 2004, the Court resent the notice of deficiency. On April 1, 2004, Plaintiff filed a motion for leave to file a cause of action arguing that he should be allowed to proceed without payment of any filing fee.¹ Plaintiff did not comply with the Court's order to provide a certified copy of his inmate trust account.

1 If Plaintiff is granted leave to proceed in forma pauperis, he will be required to pay the $150.00 filing fee in installments. See 28 U.S.C. § 1915(b).

II. DISCUSSION

Rule 41(b) of the Federal Rules of Civil Procedure allows a court to dismiss an action sua sponte for failure to prosecute or for failure to comply with the federal rules or 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., Ltd., 756 F.2d 399, 401 (5th Cir. 1985) (citing Link v. Wabash, R.R. Co., 370 U.S. 626 (1962)). Plaintiff has failed to comply with the Court's Order. Accordingly, his complaint should be dismissed for want of prosecution.

RECOMMENDATION

For the foregoing reasons, the Court recommends that the District Court dismiss Plaintiff's complaint without prejudice for want of prosecution pursuant to Fed.R.Civ.P. 41(b).

INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT

The United States District Clerk shall serve a true copy of these findings, conclusions and recommendation on Plaintiff. Pursuant to Title 28, United States Code, Section 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must serve and file written objections within ten days after being served with a copy. A party filing objections must specifically identify those findings, conclusions or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. A party's failure to file such written objections to these proposed findings, conclusions and recommendation shall bar that party from a de novo determination by the District Court. See Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 472 (1985). Additionally, any failure to file written objections to the proposed findings, conclusions and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).