IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

WICHITA FALLS DIVISION

 

STEPHEN ANTHONEY EDWARDS, §

TDCJ No. 1260584, §

 §

Plaintiff, §

 §

v. § Civil Action No. 7:22-cv-00028-M-BP

 § 

JIMMY SMITH, et al., §

§ 

Defendants. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pro se Plaintiff Stephen Edwards filed this action on March 28, 2022. ECF No. 1. His case 

was automatically referred to the undersigned that same day. ECF No. 2. Because Edwards did not 

pay the filing fee or file a long-form application to proceed in district court without prepaying fees 

and costs, the Court issued an Order and Notice of Deficiency on March 30, directing him to either 

pay the fee or apply to proceed in forma pauperis by April 20. ECF No. 4. When he did not comply, 

the Court issued a second Order and Notice of Deficiency on April 25, again directing him to either 

pay the fee or apply to proceed in forma pauperis by May 9. ECF No. 6. Both Orders and Notices 

of Deficiency warned Edwards that noncompliance may lead to a recommendation that his case 

be dismissed without further notice. See ECF Nos. 4, 6. To date, Edwards has not attempted to 

comply with the Court’s Orders and has not submitted a pleading justifying his delay. Accordingly, 

the undersigned RECOMMENDS that Chief United States District Judge Barbara M. G. Lynn 

DISMISS this action without prejudice under Federal Rule of Civil Procedure 41(b). 

The Court may dismiss an action whenever “the plaintiff fails to prosecute or to comply 

with [the Rules of Civil Procedure] or a court order.” Fed. R. Civ. P. 41(b). Edwards has not 

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complied with the Court’s first Order and Notice of Deficiency (ECF No. 4) or the Court’s second 

Order and Notice of Deficiency (ECF No. 6), warranting his case’s dismissal. Despite being 

afforded multiple opportunities to comply, Edwards has indicated no willingness to do so and has 

not submitted any pleading requesting additional time or explaining the delay. 

The Fifth Circuit prefers dismissals without prejudice under Rule 41(b). Long v. Simmons, 

77 F.3d 878, 880 (5th Cir. 1996). Dismissals with prejudice are “reserved for the most egregious 

of cases, usually cases where the requisite factors of clear delay and ineffective lesser sanctions 

are bolstered by the presence of at least one of the aggravating factors.” Rogers v. Kroger Co., 669 

F.2d 317, 320 (5th Cir. 1982). “Those aggravating factors include (1) delay resulting from 

intentional conduct, (2) delay caused by the plaintiff personally, and (3) delay causing prejudice 

to the defendant.” Boudwin v. Graystone Ins. Co., Ltd., 756 F.2d 399, 401 (5th Cir. 1985) (citing 

Morris v. Ocean Sys., Inc., 730 F.2d 248 (5th Cir. 1984)). Indeed, “a dismissal with prejudice will 

be affirmed only if: (1) there is a clear record of delay or contumacious conduct by the plaintiff, 

and (2) lesser sanctions would not serve the best interests of justice. Because this test is

conjunctive, both elements must be present.” Coleman v. Sweetin, 745 F.3d 756, 766 (5th Cir. 

2014) (citing Sealed Appellant v. Sealed Appellant, 452 F.3d 415, 417 (5th Cir. 2006)). 

This case does not implicate two of the three Boudwin factors. Nothing indicates anyone 

other than Edwards caused the delay, thus satisfying the second factor. Boudwin, 756 F.2d at 401. 

But nothing shows the delay is attributable to intentional conduct, thus failing to satisfy the first 

factor. Id. And the early stage of this proceeding means the delay has caused no prejudice to 

Defendants, thus failing to satisfy the third factor. Id. Although there is a clear record of delay, 

nothing indicates both contumacious conduct on Edwards’s part and the inefficacy of lesser 

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sanctions. See Coleman, 745 F.3d at 766. Thus, the Court should dismiss Edwards’s action without 

prejudice. 

Edwards repeatedly failed to comply with Court Orders, despite being granted multiple 

chances to do so. Thus, his case should be dismissed under Federal Rule of Civil Procedure 41(b). 

Nonetheless, nothing indicates “contumacious conduct” on Edwards’s part or hints that a dismissal 

without prejudice would not serve the interests of justice. Therefore, the dismissal should be 

without prejudice. See Coleman, 745 F.3d at 766; Rogers, 669 F.2d at 320. Accordingly, the 

undersigned RECOMMENDS that Chief Judge Lynn DISMISS this case without prejudice

under Federal Rule of Civil Procedure 41(b). 

A copy of these findings, conclusions, and recommendation shall be served on all parties 

in the manner provided by law. Any party who objects to any part of these findings, conclusions, 

and recommendation must file specific written objections within fourteen days after being served 

with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). To be specific, an objection must 

identify the particular finding or recommendation to which objection is made, state the basis for 

the objection, and specify the place in the magistrate judge’s findings, conclusions, and 

recommendation where the disputed determination is found. An objection that merely incorporates 

by reference or refers to the briefing before the magistrate judge is not specific. Failure to file 

specific written objections will bar the aggrieved party from appealing the factual findings and 

legal conclusions of the magistrate judge that are accepted or adopted by the district court, except 

upon grounds of plain error. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th 

Cir. 1996) (en banc).

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SIGNED on May 11, 2022. 

____________________________________

Hal R. Ray, Jr.

UNITED STATES MAGISTRATE JUDGE

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