IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JOHN FRANCIS, )

)

Plaintiff, )

vs. ) No. 3:22-CV-1939-M (BH)

)

ESTELLE UNIT, )

)

Defendant. ) Referred to U.S. Magistrate Judge1

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

Based on the relevant filings and applicable law, the case should be dismissed without

prejudice for failure to prosecute or comply with court orders.

I. BACKGROUND

On September 1, 2022, correspondence was received from a pro se prisoner plaintiff in

which he stated that he wished to “file a complaint”, but he did not identify the party against whom

he sought relief. (See doc. 3.) By Notice of Deficiency and Order dated September 6, 2022, he was

notified that if he had intended to file a civil rights lawsuit under 42 U.S.C. § 1983, he had not filed

his complaint on the proper form for that type of action. (See doc. 4.) He was also notified that he

had not paid the filing fee or submitted an application to proceed in forma pauperis (IFP) for a civil

rights action. (See id.) He was ordered to file his § 1983 civil rights action on the proper form and

to either pay the filing fee or submit a fully completed and signed IFP application with the required

certificate of inmate trust account within thirty days. (See id.) He was specifically advised that a

failure to do so could result in the dismissal of the case for failure to prosecute or comply with court

orders. (See id.) Attached to the order were a § 1983 form and an IFP application. (See id.) 

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 By Special Order No. 3-251, this pro se case has been automatically referred for full case management.

Case 3:22-cv-01939-M-BH Document 5 Filed 11/21/22 Page 1 of 3 PageID 16
More than thirty days from the date of the notice of deficiency and order have passed, but

the plaintiff has not filed an amended § 1983 complaint on the proper form and either paid the filing

fee or submitted an IFP application, and he has not filed anything else in this case. 

II. INVOLUNTARY DISMISSAL

Rule 41(b) of the Federal Rules of Civil Procedure permits a court to dismiss an action sua

sponte for failure to prosecute or follow orders of the court. McCullough v. Lynaugh, 835 F.2d

1126, 1127 (5th Cir. 1988) (§ 1983 prisoner action). This authority flows from a court’s inherent

power to control its docket, prevent undue delays in the disposition of pending cases, and avoid

congested court calendars. Link v. Wabash R.R. Co., 370 U.S. 626, 629-31 (1962). The plaintiff

failed to comply with an order to file an amended § 1983 civil rights complaint on the proper form,

and to either pay the filing fee or submit a fully completed IFP application with a certificate of

inmate trust account, despite a warning that failure to do so could result in dismissal of the case. He

has not filed anything else in the case since his initial filing on September 1, 2022. Because the

plaintiff failed to follow a court order or otherwise show that he intends to proceed with this case,

it should be dismissed.

III. RECOMMENDATION

The plaintiff’s case should be dismissed without prejudice under Fed. R. Civ. P. 41(b) for

failure to prosecute or follow orders of the court, unless he files an amended complaint on the proper

form and either pays the filing fee or files a fully completed IFP application with a certificate of

inmate trust account within the time for objecting to this recommendation, or by some other deadline

set by the court.

2

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SO RECOMMENDED on this 21st day of November, 2022.

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

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 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. Automobile Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996). 

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

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