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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

WILLIAM JOSEPH SUMMERVILLE, §

#2231539 §

Petitioner, §

§ No. 3:22-cv-02150-C (BT)

v. § 

§

BRYAN COLLIER, § 

Respondent. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

This is a pro se habeas action brought by William Joseph 

Summerville, a state prisoner, under 28 U.S.C. § 2254. On September 29, 

2022, the Court sent Summerville a Notice of Deficiency and Order (ECF No. 

4), which ordered him to pay the filing fee or file a motion to proceed in 

forma pauperis in this case. The Order further informed Summerville that 

failure to respond and cure the deficiency by October 31 could result in a 

recommendation that his case be dismissed. Summerville sought and 

reviewed two extensions of time to comply with the Court’s September 29 

Order, and he was directed to cure the deficiency by January 3, 2023. (ECF 

Nos. 6, 7, 8, 9.) Summerville has not filed any response, and he has not paid 

the filing fee, filed a motion for leave to proceed in forma pauperis, or 

otherwise complied with the Court’s November 9 Order. Therefore, this case 

should be dismissed without prejudice pursuant to Federal Rule of Civil 

Procedure 41(b).

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Rule 41(b) 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. 

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). “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., Ltd., 756 F.2d 399, 401 (5th Cir. 

1985) (citing Link v. Wabash, R.R. Co., 370 U.S. 626 (1962)). 

Here, Summerville has failed to comply with the Court’s order to pay 

the filing fee or file a motion to proceed in forma pauperis. This litigation 

cannot proceed until he cures this deficiency. Summerville has failed to 

prosecute his lawsuit and also failed to obey a court order. Dismissal without 

prejudice is warranted under these circumstances. 

Recommendation

The Court should dismiss Summerville’s petition without prejudice 

under Rule 41(b). 

SO RECOMMENDED.

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Signed February 1, 2023.

________________________

REBECCA RUTHERFORD

U.S. MAGISTRATE JUDGE

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation shall 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). 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 report 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 

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

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