Opinion
NO. 3-03-CV-2738-G
January 12, 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 an unspecified civil action brought by Plaintiff Randal Wardle, appearing pro se, against the City of Dallas, the Seventh Day Adventist Church, and various retail establishments and media outlets. On November 7, 2003, plaintiff tendered a rambling and largely incoherent complaint to the district clerk. However, he did not pay the statutory filing fee or file a motion to proceed in forma pauperis. The court notified plaintiff of this deficiency on November 14, 2003. Although plaintiff filed another document with the court on November 19, 2003, he did not pay the filing fee or seek leave to proceed in forma pauperis. By order dated December 18, 2003, the court advised plaintiff that the failure to correct this deficiency within 20 days "may result in the imposition of sanctions, including dismissal of this action for want of prosecution." See ORDER, 12/18/03. To date, plaintiff still has not paid the statutory filing fee or sought leave to proceed in forma pauperis. The court now determines that this case should be dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.
This document appears to be a settlement demand served on the United States Treasury Department.
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, 401 (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 has not paid the statutory filing fee or sought leave to proceed in forma pauperis. Until he does so, this litigation cannot proceed. Plaintiff was twice notified of this deficiency and warned that the failure to pay the filing fee or seek leave to proceed in forma pauperis would result in the dismissal of his case. Both orders have been ignored. Under these circumstances, dismissal is clearly warranted.
RECOMMENDATION
Plaintiff's complaint should be dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.