IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

JOSEPH HOWARD STEWART, §

§

Plaintiff, §

§

v. § 2:22-CV-0080-Z-BR

§

PRISON OFFICIALS, §

§

Defendants. §

FINDINGS, CONCLUSIONS AND RECOMMENDATION

TO DISMISS § 1983 CLAIM

 Plaintiff Joseph Howard Stewart tendered to this Court a handwritten pleading attempting 

to initiate a civil proceeding under 42 U.S.C. § 1983. (ECF 3). Plaintiff did not submit with his 

pleading any payment to satisfy the requisite fee, submit an application to proceed in forma 

pauperis certified trust fund account data sheet, or use the proper civil rights complaint form.

On November 22, 2022, the Court entered a Notice of Deficiency of the Complaint. (ECF 

5). By that order, the Court temporarily granted Plaintiff permission to proceed in forma pauperis

pending submission of a proper complaint form and certified in forma pauperis data sheet from 

the penal institution in which he is incarcerated or, alternatively, receipt of the $402.00 filing fee. 

(Id. at 2). The Court ordered Plaintiff, within 30 days, to (1) submit the data sheet, (2) pay the 

filing fee to the United States District Clerk. (Id.). The Court warned that failure to do so would 

result in an immediate recommendation for the dismissal of the case without further notice. (Id. at 

5). 

As of this date, Plaintiff has not responded to the Order or attempted to communicate with 

the Court in any way. The Court has given Plaintiff ample opportunity to comply with its Order, 

yet Plaintiff has failed to follow the Court’s direct orders. Rule 41(b) of the Federal Rules of Civil 

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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. 

1988); see Fed. R. Civ. P. 41. “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., 756 F.2d 399, 401 (5th Cir. 1985) (citing Link v. Wabash R.R. Co., 370 U.S. 

626, 82 S. Ct. 1386 (1962)). The undersigned finds Plaintiff’s failure to comply with this Court’s 

September 15, 2022 Order warrants dismissal. 

RECOMMENDATION

It is the RECOMMENDATION of the United States Magistrate Judge to the United States 

District Judge that the Complaint, (ECF 3), filed by Plaintiff Joseph Howard Stewart be 

DISMISSED.

INSTRUCTIONS FOR SERVICE

The United States District Clerk is directed to send a copy of this Findings, Conclusions 

and Recommendation to each party by the most efficient means available.

IT IS SO RECOMMENDED.

ENTERED February 9, 2023.

* NOTICE OF RIGHT TO OBJECT *

Any party may object to these proposed findings, conclusions and recommendation. In the 

event parties wish to object, they are hereby NOTIFIED that the deadline for filing objections is 

fourteen (14) days from the date of filing as indicated by the “entered” date directly above the 

signature line. Service is complete upon mailing, Fed. R. Civ. P. 5(b)(2)(C), or transmission by 

electronic means, Fed. R. Civ. P. 5(b)(2)(E). Any objections must be filed on or before the 

fourteenth (14th) day after this recommendation is filed as indicated by the “entered” date. See 28 

U.S.C. § 636(b); Fed. R. Civ. P. 72(b)(2); see also Fed. R. Civ. P. 6(d).

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Any such objections shall be made in a written pleading entitled “Objections to the 

Findings, Conclusions and Recommendation.” Objecting parties shall file the written objections 

with the United States District Clerk and serve a copy of such objections on all other parties. A 

party’s failure to timely file written objections shall bar an aggrieved party, except upon grounds 

of plain error, from attacking on appeal the unobjected-to proposed factual findings, legal 

conclusions, and recommendation set forth by the Magistrate Judge and accepted by the district 

court. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc), 

superseded by statute on other grounds, 28 U.S.C. § 636(b)(1), as recognized in ACS Recovery 

Servs., Inc. v. Griffin, 676 F.3d 512, 521 n.5 (5th Cir. 2012); Rodriguez v. Bowen, 857 F.2d 275, 

276–77 (5th Cir. 1988).

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