Opinion
NO. 3-03-CV-2704-R
January 20, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This case has been referred to the United States magistrate judge pursuant to 28 U.S.C. § 636(b) and a standing order of reference from the district court. The findings and recommendation of the magistrate judge are as follow:
I.
This is a pro se prisoner civil rights action brought by Plaintiff Jerry Wayne Talley, an inmate in the Michael Unit of the TDCJ-ID, against various prison employees. On November 3, 2003, plaintiff filed a complaint and an application for leave to proceed in forma pauperis. However, he did not submit a certificate of his inmate trust account as required by 28 U.S.C. § 1915(a)(2). By order dated November 13, 2003, plaintiff was directed to correct this deficiency within 20 days. He failed to do so. On December 12, 2003, plaintiff was warned that the failure to submit a trust account certificate within 20 days "may result in the imposition of sanctions, including dismissal of this action for want of prosecution." See ORDER, 12/12/03. To date, plaintiff has not submitted a certificate of his inmate trust account. The court now determines that this case should be dismissed without prejudice under Rule 41(b) of the Federal Rules of Civil Procedure.
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).
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, 4Q1 (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).
Plaintiff was fully aware of his responsibility to submit a certificate of his inmate trust account. He received two court orders requiring him to submit this certificate by a date certain. Plaintiff was told that the failure to comply "may result in the imposition of sanctions, including dismissal of this action for want of prosecution." Despite these repeated warnings, plaintiff still has not submitted a certified copy of his trust account statement. Without this information, the court cannot rule on plaintiffs application for leave to proceed in forma pauperis and this case cannot proceed. Dismissal is clearly warranted under these circumstances.
The court notes that another magistrate judge in this district recently recommended that a similar case brought by plaintiff against the same defendants be dismissed for failure to pay the required filing fee or seek leave to proceed in forma pauperis. Talley v. Owen, et al, No. 3-03-CV-2596-D (N.D. Tex. Jan. 8, 2004) (Sanderson, M.J.).
RECOMMENDATION
Plaintiffs complaint should be dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.