Opinion
No. 3:04-CV-0390-K.
April 9, 2004
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
I. BACKGROUND
On February 23, 2004, the Court received a handwritten document from plaintiff that the Court construed as a civil action under 42 U.S.C. § 1983. On March 5, 2004, the Court issued a Notice of Deficiency and Order directing that plaintiff file his action on the appropriate standard form for § 1983 actions and pay the required $150 filing fee or file a proper application to proceed in forma pauperis with the required certificate of inmate trust account. The Court accorded plaintiff twenty days of the date of that Order to cure the deficiencies. It warned plaintiff, furthermore, that "[f]ailure to comply with this Order will result in a recommendation that the complaint be dismissed for failure to prosecute pursuant to Federal Rules of Civil Procedure 41(b)." On March 19, 2004, the Court received a mostly indecipherable filing from plaintiff. Plaintiff has otherwise filed nothing further in this case. Nor has he paid the requisite filing fee.
II. INVOLUNTARY DISMISSAL
Rule 41(b) of the Federal Rules of Civil Procedure permits a court to dismiss sua sponte an action for failure to prosecute or follow orders of the court. McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988) (§ 1983 prisoner action). This authority flows from a court's inherent power to control its docket, prevent undue delays in the disposition of pending cases, and avoid congested court calendars. Link v. Wabash R.R. Co., 370 U.S. 626, 629-31 (1962). Plaintiff has failed to comply with the Order of March 5, 2004, that he file this action on the standard § 1983 form and pay the requisite filing fee or submit a proper request to proceed in forma pauperis with accompanying certificate of inmate trust account. Accordingly, the Court should dismiss his complaint.III. RECOMMENDATION
For the foregoing reasons, it is recommended that plaintiff's complaint be dismissed without prejudice for want of prosecution pursuant to Fed.R.Civ.P. 41(b).