IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JOHN FRANCIS, §

#2253451, §

MOVANT, §

§

V. § CASE NO. 3:22-CV-1768-X-BK

§

FNU LNU, §

 RESPONDENT. §

FINDINGS, CONCLUSIONS AND RECOMMENDATION 

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. § 636(b) and Special Order 3, this case was referred to the United 

States magistrate judge for management, including the issuance of findings and a recommended 

disposition where appropriate. For the reasons that follow, this action should be DISMISSED 

WITHOUT PREJUDICE for failure to comply with a Court order. 

On August 9, 2022, John Francis, a Texas inmate proceeding pro se, filed one-page 

correspondence addressed to the District Clerk, in which he appears to ask that he be granted an 

“appeal” that a state court judge had already “granted.” Doc. 3. He avers he can prove that he is 

not guilty and desires to file a “complaint” because (1) neither the state court judge nor assistant 

district attorney was present at an unspecified hearing and (2) police officers did not read him his 

rights when he was “handcuffed” at his apartment or show him a warrant. Doc. 3. 

Because it is unclear if Francis is seeking a release from confinement pursuant to 28 

U.S.C. § 2254 or some other type of relief, such as monetary damages pursuant to 42 U.S.C. § 

1983, and because Francis failed to pay the appropriate filing fee or file a motion to proceed in 

forma pauperis, on October 14, 2022, the Court issued a notice of deficiency and order 

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permitting Francis an opportunity to amend his claims to state either a habeas action under 

Section 2254 or a civil rights action under Section 1983. See Doc. 5. The order further noted 

that, under either statute, Francis must pay the appropriate filing fee or obtain leave to proceed in 

forma pauperis. Doc. 5. The Court also directed the Clerk of Court to send Francis a form 

Section 2254 habeas petition, a form Section 1983 civil rights complaint, and a form motion for 

leave to proceed in forma pauperis (prisoner). Doc. 5.

Francis’s deadline to comply with the Court’s October 14, 2022 order was November 11, 

2022. Doc. 5. However, Francis neither filed an amended habeas petition or civil rights 

complaint, nor paid the filing fee or moved for leave to proceed in forma pauperis. Thus, on 

December 4, 2022, the Court entered a second notice of deficiency and order, again prompting 

Francis to amend his claims to state either a habeas action under Section 2254 or a civil rights 

action under Section 1983 and move to proceed in forma pauperis or pay the appropriate filing 

fee. Doc. 6. Francis’s deadline to comply with the second deficiency order was December 27, 

2022, but as of the date of this recommendation, Francis has neither complied nor sought an 

extension of the time to do so. 

Rule 41(b) of the Federal Rules of Civil 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. 1998). “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)). 

But “[w]here further litigation of [a] claim will be time-barred, a dismissal without 

prejudice is no less severe a sanction than a dismissal with prejudice, and the same standard of

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review is used.’” Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992) (quoting 

McGowan v. Faulkner Concrete Pipe Co., 659 F.2d 554, 556 (5th Cir. 1981)). Under such 

circumstances, the Fifth Circuit will “affirm dismissals with prejudice for failure to prosecute 

only when (1) there is a clear record of delay or contumacious conduct by the plaintiff, and (2) 

the district court has expressly determined that lesser sanctions would not prompt diligent 

prosecution, or the record shows that the district court employed lesser sanctions that proved to 

be futile.” Id. at 1191. 

Here, because it is unclear from Francis’s vague pleading whether any of his intended 

claims will be time-barred, the Court, in an abundance of caution, analyzes the dismissal as one 

with prejudice. First, there is a clear record of delay by Francis. Since filing his pleading on 

August 9, 2022, he has filed one “status request,” on August 30, 2022. Doc. 3. However, 

Francis has filed nothing since, and as stated previously, has failed to respond to either of the

Court’s deficiency orders. Further, it does not appear that lesser sanctions would prompt Francis 

to prosecute his case since he has already failed to comply with two of the Court’s prior orders. 

See, e.g., Lucero v. Canchola, Misc. Action No. 7:22-MC-134, 2022 WL 17573446, at *2 (S.D. 

Tex. Oct. 27, 2022), rec. accepted 2022 WL 17574802 (S.D. Tex. Dec. 9, 2022) (dismissing 

complaint with prejudice for failure to prosecute and noting that “[i]t appears that no lesser 

sanction is available since Plaintiff failed to comply with the Court’s order, there appears to be 

no proper basis for subject matter jurisdiction, and Plaintiff has taken no further action in this 

case”). 

At bottom, Francis has been given ample opportunity to respond to the Court’s deficiency 

orders. He has impliedly refused or declined to do so. Therefore, this action should be 

DISMISSED WITHOUT PREJUDICE for failure to comply with a Court order and for lack of 

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prosecution. See FED. R. CIV. P. 41(b) (an involuntary dismissal “operates as an adjudication on 

the merits,” unless otherwise specified).

SO RECOMMENDED on February 14, 2023.

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation will be served on all parties in the manner provided 

by law. Any party who objects to any part of this report 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). An objection must identify the finding or recommendation to which 

objection is made, the basis for the objection, and the place in the magistrate judge’s report and 

recommendation 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 Services Automobile Ass’n, 79 F.3d 1415, 

1417 (5th Cir. 1996), modified by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending the 

time to file objections to 14 days). 

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