Opinion
No. 3:03-CV-3003-R.
April 23, 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 District Court, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge follow:
FINDINGS AND CONCLUSIONS: Factual Background: On December 17, 2003, Plaintiff filed this complaint against Defendant. Plaintiff also filed a motion to proceed in forma pauperis. Based upon the information contained in Plaintiff's in forma pauperis motion, the Court was unable to determine whether Plaintiff should be allowed to proceed in forma pauperis. On December 23, 2003, the Court sent Plaintiff a more detailed in forma pauperis affidavit. Plaintiff stated in the financial affidavit that he is presently employed, makes $2,400 per month and that he has no dependents. The Court therefore found that Plaintiff would not suffer undue hardship after payment of the $150.00 filing fee. The Court granted Plaintiff forty-five days in which to pay the filing fee, or the Court would recommend that this case be dismissed. More than forty-five days have passed and Plaintiff has failed to pay the filing fee or seek an extension of time in which to pay the fee.
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, 82 S.Ct. 1386 (1962)). Plaintiff has failed to comply with the Court's Order. Accordingly, the complaint should be dismissed for want of prosecution.
RECOMMENDATION:
The Court recommends that the complaint be dismissed without prejudice for want of prosecution, pursuant to Fed.R.Civ.P. 41(b).