Opinion
Civil Action 3:23-CV-450-L-BH
07-10-2023
DON AMECHE LEVERN WRIGHT, Plaintiff, v. GREGORY WAYNE ABBOTT, et al., Defendants.
ORDER
SAM A. LINDSAY, UNITED STATES DISTRICT JUDGE
The Findings, Conclusions and Recommendation of the United States magistrate judge (“Report”) (Doc. 14) was entered on June 9, 2023, recommending that the Amended Complaint (Doc. 5) filed by pro se Plaintiff Don Ameche Levern Wright (“Plaintiff”) be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 41(b) for failure to prosecute his claims or follow an order of the court. Plaintiff brought this action against the Governor of Texas and his wife, along with other public officials and law enforcement officers, for the alleged violation of his constitutional rights during a traffic stop on September 7, 2021. Doc. 5 at 1.
The magistrate judge ordered Plaintiff to file the Amended Complaint to cure a pleading deficiency under Federal Rule of Civil Procedure 8(a), which requires the complaint be a short and plain statement of his claims. The magistrate judge also ordered Plaintiff either pay the filing fee or file a motion for leave to proceed in forma pauperis (“IFP”). Plaintiff timely complied with both requirements. The magistrate judge then ordered that Plaintiff respond to a questionnaire to answer factual questions about his claims. Although Plaintiff filed motions for discovery, he did not respond to the questionnaire. The magistrate judge reminded Plaintiff of the pending questionnaire and that failure to respond could result in dismissal of his case, but Plaintiff failed to obey. The magistrate judge then entered the Report recommending dismissal without prejudice, and Plaintiff has not filed any objections to the Report.
Having considered the Complaint, Report, file, and record, and Plaintiff's filings, the court determines that the magistrate judge's finding and conclusions in the Report are correct, and accepts them as those of the court. Although Plaintiff complied with the court's orders to file an Amended Complaint and motion for leave to proceed IFP, he did not respond to the magistrate judge's questionnaire. He may not choose which court orders to follow. Accordingly, the court dismisses without prejudice Plaintiff's claims and this action against Gregory Wayne Abbott, Cecilia Phalen Abbot, Cindy Ermatinger, Sherry Roeder, Jerry Gerstenkorn, Aaron Lockhart, Steve Perez, James Langham, Connar Newberry, Yvette Gallogas, Cody McKinney, and Jalen Merrick for failure to prosecute or comply with court orders pursuant to Federal Rule of Civil Procedure 41(b).
The court prospectively certifies that any appeal of this action would not be taken in good faith. See 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). In support of this certification, the court incorporates by reference the Report. See Baugh v. Taylor, 117 F.3d 197, 202 and n.21 (5th Cir. 1997). Based on the magistrate judge's Report, the court concludes that any appeal of this action would present no legal point of arguable merit and would therefore be frivolous. Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). In the event of an appeal, Plaintiff may challenge this certification by filing a separate motion to proceed in forma pauperis on appeal with the clerk of the United States Court of Appeals for the Fifth Circuit. See Baugh, 117 F.3d at 202; Fed. R. App. P. 24(a)(5).
It is so ordered.