IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JERRY WAYNE TALLEY, #345977, )

Plaintiff, )

)

v. ) 3:05-CV-0650-D

)

WHITE MALE OFFICER, )

Defendant. )

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 the District Court in

implementation thereof, this cause has been referred to the United States Magistrate Judge. 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 civil rights action brought pursuant to 42 U.S.C. § 1983.

Parties: Plaintiff is presently incarcerated at the Michael Unit of the Texas Department

of Criminal Justice – Correction Institutions Division (TDCJ-CID) in Tennessee Colony, Texas. 

Defendant is a white male officer at the Michael Unit. The court has not issued process in this

case.

Findings and Conclusions: On April 7, 2005, the magistrate judge issued a notice of

deficiency and order to Plaintiff. The order notified Plaintiff that he had neither paid the filing

fee nor submitted a proper request to proceed in forma pauperis, and that his civil rights

pleadings were not filed on the appropriate form. The order then directed Plaintiff to cure the

deficiency within thirty days and cautioned him that failure to comply with the order would

result in a recommendation that the complaint be dismissed for failure to prosecute. As of the

 

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date of this recommendation, Plaintiff has failed to comply with the deficiency order. 

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 [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, 82 S.Ct. 1386 (1962)). 

Because Plaintiff has been given ample opportunity to pay the filing fee or submit a

motion for leave to proceed in forma pauperis, but has refused or declined to do so, this action

should be dismissed for lack 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 Plaintiff.

Signed this 20th day of May, 2005.

____________________________________

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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