IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

STEVEN W. QUICK §

§

Plaintiff, §

§

VS. § NO. 3-05-CV-1149-M

§

TERRY SPANGLER §

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Defendant. §

FINDINGS AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

This case has been referred to the United States magistrate judge pursuant to 28 U.S.C. §

636(b) and a standing order of reference from the district court. The findings and recommendation

of the magistrate judge are as follow:

I.

This is a pro se civil rights action brought by Plaintiff Steven W. Quick, a Texas prisoner,

against Terry Spangler, a court reporter. On June 3, 2005, plaintiff tendered a complaint to the

district clerk and filed an application to proceed in forma pauperis. Because the information

provided by plaintiff in his pauper's affidavit indicates that he lacks the funds necessary to prosecute

this case, the court granted leave to proceed in forma pauperis and allowed the complaint to be filed.

On July 29, 2005, a written questionnaire was sent to plaintiff in order to obtain additional

information about the factual basis of this suit. See Spears v. McCotter, 766 F.2d 179, 181 (5th Cir.

1985). Plaintiff was warned that the failure to answer the questionnaire within 20 days "may result

in the dismissal of the complaint for failure to prosecute pursuant to Fed. R. Civ. P. 41(b)." No

answers were filed. On August 19, 2005, the court gave plaintiff an additional 20 days to answer

 

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the questionnaire. Plaintiff again was warned that his complaint may be dismissed without further

notice if he failed to answer the questionnaire. See ORDER, 8/19/05. To date, the questionnaire

remains unanswered. The court now concludes that this case should be dismissed without prejudice

pursuant to Fed. R. Civ. P. 41(b).

II.

A district court has authority to dismiss a case for want of prosecution or failure to comply

with a court order. FED.R.CIV.P. 41(b); 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 Insurance Co., Ltd., 756 F.2d 399, 401

(5th Cir. 1985), citing Link v. Wabash Railroad Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734

(1962). Such a dismissal may be with or without prejudice. See Long v. Simmons, 77 F.3d 878,

879-80 (5th Cir. 1996). A dismissal with prejudice is appropriate only if the failure to comply with

the court order was the result of purposeful delay or contumacious conduct and the imposition of

lesser sanctions would be futile. Id.; see also Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191

(5th Cir. 1992).

The court sent a written questionnaire to plaintiff over a month ago. Plaintiff has not

answered the questionnaire despite repeated warnings that his failure to do so would result in the

dismissal of the case. The court must obtain additional information about the factual basis of this

suit in order to screen the complaint and determine whether process should be issued to the

defendant. The inability to proceed with this litigation is directly attributable to plaintiff's failure

to provide the information requested. Dismissal is clearly warranted under these circumstances. See

Armstead v. Corrections Corporation of America, No. 3-04-CV-1813-K, 2004 WL 3045190 at *1

(N.D. Tex. Dec. 2, 2004), rec. adopted, 2004 WL 3048619 (N.D. Tex. Dec. 30, 2004) (dismissing

 

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complaint for failure to answer Spears questionnaire); Wiggins v. Management and Training Corp.,

No. 3-03-CV-1547-L, 2003 WL 22259080 at *1 (N.D. Tex. Sept. 25, 2003), rec. adopted, 2003 WL

22415739 (N.D. Tex. Oct. 30, 2003) (same).

RECOMMENDATION

This case should be dismissed without prejudice pursuant to Fed. R. Civ. P. 41(b).

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

provided by law. Any party may file written objections to the recommendation within 10 days after

being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). The failure to file

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).

DATED: September 13, 2005.

 

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