IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

LINDA HACK, )

Plaintiff, )

)

v. ) No. 3:04-CV-2752-K

)

DEPARTMENT OF HOUSING AND )

URBAN DEVELOPMENT, et al., )

Defendants. )

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to the provisions of 28 U.S.C. § 636(b) and an order of reference filed on July 31,

2006, this pro se action was re-referred to the undersigned Magistrate Judge following a remand by

the Fifth Circuit Court of Appeals. The findings, conclusions and recommendation of the Magistrate

Judge, as evidenced by his signature thereto, are as follows:

FINDINGS AND CONCLUSIONS:

Type of Case: This is a pro se civil action alleging violations of the Americans with

Disability Act (“ADA”), the Fair Housing Act (“FHA”), the Civil Rights Act (“CRA), the Texas

Property Code, the Texas Deceptive Trade Practices Act (“DTPA”), libel, perjury and fraud.

Parties: Plaintiff is presently a resident of Dallas, Texas. During the times at issue in this

suit, she was eligible for Section 8 housing. 

Defendants are the Department of Housing and Urban Development (HUD); the Fort Worth

HUD Office; the Fort Worth Office of Fair Housing and Equal Opportunity; the Dallas County

Commissioners Court; the Texas Department of Health and Human Services (HHS); Real Estate

Agent Gordon Duncan; Erik and Evelyn Cotton, owners of an apartment complex where Plaintiff

 

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resided from January 2002 until January 2003; Neighbors Patsy Weaver, Paul Jasin, Nancy Bourlier,

and Ron Williams; Lakewood Garden Apartments, where Plaintiff resided from January until

September 15, 2003; and Marta Doe, Office Manager of Lakewood Garden Apartments. Plaintiff

also includes as unnamed defendants a home locating service, which she used sometime prior to

January 2003; a mover, which she utilized in January 2003; and the owners of Lakewood Garden

Apartments. 

The Court has not issued process in this case, pending preliminary screening.

Procedural History: On June 22, 2005, the Magistrate Judge recommended that this action

be dismissed for want of prosecution because Plaintiff had failed to respond to the Magistrate

Judge’s Questionnaire filed on May 10, 2005. Contemporaneously with the filing of the above

recommendation, Plaintiff submitted a pleading styled as “Motion to Quash,” asserting that she did

not have the necessary documents to present her case and that she needed the assistance of counsel

to answer the questionnaire. She also provided a “summary” of her claim and asked the Court to

accept the “summary as her response to the court’s questionnaire, and quash the excessive details

requested in the same.” The Clerk docketed this pleading as both a motion to quash and answers

to the questionnaire. (See Docket # 7 and #8). 

On July 1, 2005, Plaintiff filed a motion seeking reconsideration of the Magistrate Judge’s

Findings, Conclusions and Recommendation, and requesting the Court to address her pending

motions to proceed to proceed in forma pauperis, to appoint counsel, and to quash the questionnaire.

On July 11, 2005, the District Court accepted the recommendation and entered a judgment

dismissing the case for want of prosecution. The Fifth Circuit subsequently vacated the judgment

and remanded the case for further proceeding, primarily due to the magistrate judge’s oversight in

 

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failing to state that Plaintiff’s complaint should be dismissed without prejudice and in failing to warn

her of the consequences if she failed to answer the magistrate judge’s questionnaire. 

On August 21, 2006, following the re-referral of this action, the Magistrate Judge filed an

order granting Plaintiff’s motion to proceed in forma pauperis, but denying without prejudice her

motions for the appointment of counsel and to quash the questionnaire, and advising her that the

magistrate judge’s questionnaire would be re-issued. The Order noted that Plaintiff’s motion to

quash, which arguably summarized her claims, failed to provide the information sought in the

questionnaire to determine whether this Court has jurisdiction over the individual claims asserted

in her complaint. The Order further noted that, while the questionnaire was very lengthy, its length

was a function of the number of persons and entities which Plaintiff sought to sue – fifteen – and the

time frames involved, as well as alleging both federal and state causes of action.. 

The Amended Questionnaire, filed on August 21, 2006, notified Plaintiff in bold letters that

“[f]ailure to file answers to the Questions may result in the dismissal of the action for failure to

prosecute.” (Docket #24).

As of the date of this recommendation, Plaintiff has neither submitted her answers to the

Magistrate Judge’s Amended Questionnaire nor sought an extension of time to do so. 

Findings and Conclusions: The Fifth Circuit Court of Appeals has approved the use of

questionnaires as a proper method to develop the factual basis of a pro se complaint. See Berry v.

Brady, 192 F.3d 504, 507 (5th Cir. 1999) (reaffirming use of questionnaire as useful and proper

means for court to develop factual basis of pro se plaintiff’s complaint); Eason v. Thaler, 14 F.3d

8 (5th Cir. 1994) (requiring further development of insufficient factual allegations before dismissal

under former § 1915(d) is proper); Watson v. Ault, 525 F.2d 886, 892-93 (5th Cir. 1976) (affirming

 

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use of questionnaire as useful and proper means for court to develop factual basis of pro se plaintiff's

complaint). 

28 U.S.C. § 1915 operates as a balancing mechanism to insure on the one hand that relief in

a federal court to an aggrieved person is not foreclosed merely because the person is unable to pay

the filing fee, § 1915(a)(1), while on the other hand insuring that court resources are not needlessly

expended and that named defendants are not required to incur expenses and hire counsel to respond

to a complaint when the claims asserted fail to allege cognizable causes of action or are otherwise

barred. See § 1915(e)(2)(B)(i) and (ii).

As noted above, the Fifth Circuit has approved the use of questionnaires to enable a court

to discharge its screening function when a pro se plaintiff is proceeding in forma pauerpis.

In the court’s order filed on August 21, 2006, the magistrate judge noted two deficiencies

set out in the Fifth Circuit’s remand of the case, i.e. the court’s dismissal of Plaintiff’s complaint

with prejudice without further explanation and the magistrate judge’s failure to warn Plaintiff of the

consequences were she to fail to answer the former questionnaire issued on May 10, 2005. In both

the August 21, 2006, order as well as the questionnaire reissued on the same date, Plaintiff was

placed on notice that her failure to answer the amended questionnaire could result in dismissal of

her complaint. Nonetheless, as noted above, Plaintiff has not answered the questionnaire.

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); McCullough v. Lynaugh, 835 F.2d 1126,

1127(5th Cir. 1988). “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.

 

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

U.S. 626 (1962)). 

Because Plaintiff has been given ample opportunity to submit her answers to the Amended

Questionnaire, this action should be dismissed without prejudice for want of prosecution. See Fed.

R. Civ. 41(b) (an involuntary dismissal “operates as an adjudication on the merits,” unless otherwise

specified); Callip v. Harris County Child Welfare Department, 757 F.2d 1513, 1519 (5th Cir. 1985)

(setting out higher standard for dismissals with prejudice for want of prosecution). 

RECOMMENDATION:

For the foregoing reasons, it is recommended that this action be DISMISSED without

prejudice for want of prosecution pursuant to Federal Rule of Civil Procedure 41(b). 

A copy of this recommendation will be mailed to Plaintiffs.

Signed this 13th day of October, 2006.

 ____________________________________

WM. F. SANDERSON, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE

In the event that you wish to object to this recommendation, you are hereby notified that you

must file your written objections within ten days after being served with a copy of this

recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996)

(en banc), a party's failure to file written objections to these proposed findings of fact and

conclusions of law within such ten-day period may bar a de novo determination by the district judge

of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain

error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law

accepted by the district court.

 

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