Opinion
NO. 3-03-CV-1547-L
September 25, 2003
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 Marvin Alien Wiggins, an inmate at the Dawson State Jail, against various contractors and jail employees. On July 9, 2003, plaintiff tendered a complaint to the district clerk and filed an application for leave to proceed in forma pauperis. Because the information provided by plaintiff in his pauper's affidavit indicates that he lacks the funds necessary to prosecute this case, the court granted leave to proceed in forma pauperis and allowed the complaint to be filed. On July 18, 2003, a written questionnaire was sent to plaintiff in order to obtain additional information about the factual basis of his suit. See Spears v. McCotter, 766 F.2d 179, 181 (5th Cir. 1985). Plaintiff was warned that the failure to answer the questionnaire within 20 days "may result in the dismissal of the complaint for failure to prosecute pursuant to Fed.R.Civ.P. 41(b)." No answers were filed. On August 29, 2003, the court gave plaintiff an additional 20 days to answer the questionnaire. Once again, plaintiff was admonished that "the failure to comply with this order may result in the imposition of sanctions, including dismissal of the action for want of prosecution." See ORDER, 8/29/03. To date, the questionnaire remains unanswered. The court now concludes that this case should be dismissed for want of prosecution pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.
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, 8L.Ed.2d734(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).
The court sent a written questionnaire to plaintiff over two months ago. Plaintiff has not answered the questionnaire despite repeated warnings that his failure to do so would result in the dismissal of the case. The court must obtain additional information about the factual basis of this suit in order to screen the complaint and determine whether process should be issued to the defendants. The inability to proceed with this litigation is directly attributable to plaintiffs failure to provide the information requested. Dismissal is clearly warranted under these circumstances.
RECOMMENDATION
This case should be dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.