IN THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

SASHA WINDHAM, § 

 § 

Plaintiff, § 

§ 

V. § No. 3:22-cv-759-L-BN 

§ 

REGIONAL ACCEPTANCE § 

CORPORATION, § 

§ 

Defendant. § 

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE 

UNITED STATES MAGISTRATE JUDGE 

Plaintiff Sasha Windham filed a pro se action in a Dallas County justice court 

that includes claims under two federal statutes, the Federal Debt Collection Practices 

Act and the Fair Credit Reporting Act. See Dkt. No. 1-1. Defendant Regional 

Acceptance Corporation (RAC) answered in state court and removed to federal court. 

See Dkt. No. 1. United States District Judge Sam A. Lindsay then referred the 

removed case to the undersigned United States magistrate judge for pretrial 

management under 28 U.S.C. § 636(b) and a standing order of reference. 

On April 7, 2022, the Court ordered the parties to meet and confer and then 

file, by April 29, 2022, a joint report under Federal Rule of Civil Procedure 26(f) 

containing a proposed discovery plan and stating the parties’ views and proposals on 

certain specified matters (the Rule 26(f) Report). See Dkt. No. 6 (warning the parties 

“that failing to comply with any part of this order may result in the imposition of 

sanctions” (citing FED. R. CIV. P. 16(f); FED. R. CIV. P. 37(f))). Because no report was 

filed, the Court ordered the parties to file the Rule 26(f) Report by May 10, 2022 and 

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to respond to show cause why the Court should not impose sanctions. See Dkt. No. 7. 

RAC responded by filing the Rule 26(f) Report “independently of plaintiff 

because RAC has been unable to contact plaintiff” [Dkt. No. 8] and by filing a Verified 

Response to Order to Show Cause [Dkt. No. 9]. 

Considering these filings, the Court, on May 11, 2022, ordered Windham to file 

a written response by June 13, 2022 to show why this lawsuit should not be dismissed 

without prejudice under Federal Rule of Civil Procedure 41(b) for failure to prosecute 

and for failure to obey an order of the Court. See Dkt. No. 10. 

It is now almost two months past the deadline set by the Court’s order, and 

Windham has neither complied with the May 11 order nor otherwise contacted the 

Court. 

Rule 41(b) “authorizes the district court to dismiss an action sua sponte for 

failure to prosecute or comply with [a Federal Rule of Civil Procedure or] a court 

order.” Griggs v. S.G.E. Mgmt., L.L.C., 905 F.3d 835, 844 (5th Cir. 2018) (citing 

McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988) (per curiam)); accord 

Nottingham v. Warden, Bill Clements Unit, 837 F.3d 438, 440 (5th Cir. 2016) (failure 

to comply with a court order); Rosin v. Thaler, 450 F. App’x 383, 383-84 (5th Cir. 

2011) (per curiam) (failure to prosecute); see also Campbell v. Wilkinson, 988 F.3d 

798, 800-01 (5th Cir. 2021) (holding that the text of Rule 41(b) does not extend to a 

failure to comply with a court’s local rule insofar as that violation does not also qualify 

as a failure to prosecute (discussing Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188 (5th 

Cir. 1992))). 

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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 Ins. 

Co., Ltd., 756 F.2d 399, 401 (5th Cir. 1985) (citing Link v. Wabash R.R. Co., 370 U.S. 

626 (1962)); see also Lopez v. Ark. Cnty. Indep. Sch. Dist., 570 F.2d 541, 544 (5th Cir. 

1978) (“Although [Rule 41(b)] is phrased in terms of dismissal on the motion of the 

defendant, it is clear that the power is inherent in the court and may be exercised sua 

sponte whenever necessary to ‘achieve the orderly and expeditious disposition of 

cases.’” (quoting Link, 370 U.S. at 631)); Campbell, 988 F.3d at 800 (“It is well 

established that Rule 41(b) permits dismissal not only on motion of the defendant, 

but also on the court’s own motion.” (citing Morris v. Ocean Sys., Inc., 730 F.2d 248, 

251 (5th Cir. 1984) (citing, in turn, Link, 370 U.S. at 631))). 

And the Court’s authority under Rule 41(b) is not diluted by a party proceeding 

pro se, as “[t]he right of self-representation does not exempt a party from compliance 

with relevant rules of procedural and substantive law.” Wright v. LBA Hospitality, 

754 F. App’x 298, 300 (5th Cir. 2019) (per curiam) (quoting Hulsey v. Texas, 929 F.2d 

168, 171 (5th Cir. 1991) (quoting, in turn, Birl v. Estelle, 660 F.2d 592, 593 (5th Cir. 

Nov. 1981))). 

A Rule 41(b) dismissal may be with or without prejudice. See Long v. Simmons, 

77 F.3d 878, 879-80 (5th Cir. 1996). 

Although “[l]esser sanctions such as fines or dismissal without prejudice 

are usually appropriate before dismissing with prejudice, ... a Rule 41(b) 

dismissal is appropriate where there is ‘a clear record of delay or 

contumacious conduct by the plaintiff and when lesser sanctions would 

not serve the best interests of justice.’” 

Nottingham, 837 F.3d at 441 (quoting Bryson v. United States, 553 F.3d 402, 403 (5th 

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Cir. 2008) (per curiam) (in turn quoting Callip v. Harris Cnty. Child Welfare Dep’t, 

757 F.2d 1513, 1521 (5th Cir. 1985))); see also Long, 77 F.3d at 880 (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); cf. Nottingham, 837 F.3d at 442 (noting that “lesser 

sanctions” may “‘include assessments of fines, costs, or damages against the plaintiff, 

conditional dismissal, dismissal without prejudice, and explicit warnings’” (quoting 

Thrasher v. City of Amarillo, 709 F.3d 509, 514 (5th Cir. 2013))). 

“When a dismissal is without prejudice but ‘the applicable statute of 

limitations probably bars future litigation,’” that dismissal operates as – i.e., it is 

reviewed as – “a dismissal with prejudice.” Griggs, 905 F.3d at 844 (quoting 

Nottingham, 837 F.3d at 441); see, e.g., Wright, 754 F. App’x at 300 (affirming 

dismissal under Rule 41(b) – potentially effectively with prejudice – where “[t]he 

district court had warned Wright of the consequences and ‘allowed [her] a second 

chance at obtaining service’” but she “disregarded that clear and reasonable order”). 

By not complying with the May 11 order – in addition to leaving the impression 

that he no longer wishes to pursue his claims – Windham has prevented this action 

from proceeding and has thus failed to prosecute this lawsuit. A Rule 41(b) dismissal 

of this lawsuit without prejudice is therefore warranted under these circumstances. 

Because the undersigned concludes that lesser sanctions would be futile, as the Court 

is not required to delay the disposition of this case until such time as Windham 

decides to obey the Court’s order or contact the Court, the Court should exercise its 

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inherent power to prevent undue delays in the disposition of pending cases and sua 

sponte dismiss this action without prejudice under Rule 41(b). 

It is not apparent based on the record here that dismissal of this lawsuit 

without prejudice at this stage would effectively be a dismissal with prejudice – for 

example, because a statute of limitations would prevent Windham’s refiling these 

claims. But, insofar as this dismissal may somehow prejudice Windham, these 

findings, conclusions, and recommendation afford notice, and the opportunity to file 

objections (further explained below) affords an opportunity to respond, to explain why 

this case should not be dismissed for the reasons set out above. Cf. Carver v. Atwood, 

18 F.4th 494, 498 (5th Cir. 2021) (“The broad rule is that ‘a district court may dismiss 

a claim on its own motion as long as the procedure employed is fair.’ More specifically, 

‘fairness in this context requires both notice of the court’s intention and an 

opportunity to respond’ before dismissing sua sponte with prejudice.” (citations 

omitted)). 

Recommendation

The Court should dismiss this action 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 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV.

P. 72(b). In order to be specific, an objection must identify the specific finding or 

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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). 

DATED: August 10, 2022 

 

 _________________________________________ 

DAVID L. HORAN 

UNITED STATES MAGISTRATE JUDGE 

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