Opinion
No. 3:04-CV-2563-H.
March 17, 2005
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 District Court in implementation thereof, this cause has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type of Case: This is an unspecified civil action.
Parties: Plaintiff is presently incarcerated at the Michael Unit of the Texas Department of Criminal Justice — Correctional Institutions Division (TDCJ-CID) in Tennessee Colony, Texas. Although the complaint names the undersigned as a defendant, it is clear that he is seeking to sue a prison official and/or other inmate at the Michael Unit for assault. The court has not issued process in this case.
Findings and Conclusions: On December 13, 2004, the magistrate judge wrote to Plaintiff requesting clarification of his intentions in submitting the written documents in this case — i.e., whether he was seeking to sue the undersigned magistrate judge as a defendant party. See Attached letter. Talley did not respond to the letter of inquiry. Thereafter on January 20, 2005, the magistrate judge ordered Plaintiff to submit a letter answering the questions set out in the December 13, 2004 letter. The order informed Plaintiff that his failure to comply would result in a recommendation that the complaint would be dismissed for failure to prosecute. As of the date of this recommendation, Plaintiff has failed to comply with the January 20, 2005 order.
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, 82 S.Ct. 1386 (1962)).
Because Plaintiff has been given ample opportunity to explain whether he is seeking to sue the undersigned as a defendant party, but has refused or declined to do so, this action should be dismissed for lack of prosecution.
RECOMMENDATION:
For the foregoing reasons, it is recommended that this action be dismissed without prejudice for want of prosecution pursuant to Federal Rule of Civil Procedure 41(b). A copy of this recommendation will be mailed to Plaintiff.
ATTACHMENT UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS UNITED STATES COURTHOUSE 1100 COMMERCE STREET, ROOM 1407 DALLAS, TEXAS 75242
WM. F. SANDERSON JR. PHONE (214) 753-2385 U.S. MAGISTRATE JUDGE December 13, 2004 FAX (214) 753-2390
Jerry Wayne Talley 345977 Michael, P.O. Box 4500 Tennessee Colony, TX 75886
Re: 3-04-CV-2563-H
Dear Sir:
Your handwritten documents denominated as complaints and which are dated November 11, 2004, were filed on November 16, 2004, and December 1, 2004, respectively, in the above numbered case and assigned to the undersigned magistrate judge for initial screening and review.
In examining these documents it is unclear whether they constitute communications to me regarding your current complaints with respect to conditions you are experiencing at the Michael Unit or whether you are intending to file an action naming the undersigned as a defendant party.
Please clarify your intentions by sending me a reply to the questions raised in the preceding paragraph. Your reply should be mailed directly to my chambers on or before December 23, 2004.
Very truly yours,
Wm. F. Sanderson, Jr.