Opinion
No. 3:04-CV-1874-B.
September 27, 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 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 a civil rights action brought by a county inmate pursuant to 42 U.S.C. § 1983.
Parties: Plaintiff is presently incarcerated at the Dallas County Jail in Dallas, Texas. Defendant is Charlston Methodist Hospital. The court has not issued process in this case.
Findings and Conclusions: On September 7 and September 17, 2004, the Magistrate Judge issued a deficiency order to Plaintiff notifying him that his request to proceed in forma pauperis did not include a certified statement of the balance in his inmate trust account for the six-month period preceding the filing of the complaint. 28 U.S.C. § 1915(a)(2). Both orders specified that his inmate trust account failed to be certified by an authorized officer at the Dallas County Jail. The orders directed Plaintiff to cure the deficiency within thirty days and cautioned him that failure to comply with the order would result in a recommendation that the complaint be dismissed for failure to prosecute.
As of the date of this recommendation, Plaintiff has failed to comply with either deficiency order. On September 23 and 24, 2004, he submitted two more unsigned, uncertified statements of inmate trust account, one handwritten and the other one on the court-approved form. He neither explains the steps he has taken in obtaining a certified statement of his inmate trust account, nor states whether he has submitted a grievance or "kyte" to the vault requesting a complete list of the transactions in his inmate trust account for the last six months.
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 remedy the deficiency in his motion for leave to proceed in forma pauperis, but has refused or declined to do so, this action should be dismissed for lack of prosecution. The court is not required to delay disposition in this case until such time as Plaintiff decides to comply with the requirement of submitting a certified statement of his inmate trust account as required by 28 U.S.C. § 1915(a)(2). 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 Kenneth Tyrell Winslow, #04046862, Dallas County Jail, Lew Sterrett, 500 Commerce Street, Dallas, Texas 75202.