1

 In his original pro se complaint, plaintiff also asserted claims against: (1) Tarrant County prosecutors Tim

Curry, Mollee Westfall and Lloyd Welcher, Duncanville Police Officer Wayne Schier, and attorneys Scott Brown and

Cheyenne Minick related to his 1998 indictment and conviction for aggravated sexual assault of a child; (2) Dallas

County District Attorney Bill Hill and attorney Russell Wilson II related to his prosecution for failure to register as a

sex offender; (3) Dallas County Sheriff Lupe Valdez and Jail Medical Director Steven Bowers related to the conditions

of his confinement in the Dallas County Jail; and (4) Grand Prairie Police Officers Patton, Lee, Patterson, Darter,

Hickman, and Investigator Ringer related to his harassment for being a sex offender. Those claims were dismissed on

initial screening. Burr v. Hill, No. 3-05-CV-1539-D, 2005 WL 2291891 (N.D. Tex. Sept. 16, 2005), rec. adopted by

Order, 10/18/05.

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

DONALD ROGER BURR §

§

Plaintiff, §

§

VS. § NO. 3-05-CV-1539-D 

§

BILL HILL, ET AL. §

§

Defendants. §

FINDINGS AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

Defendants Michael McClaskey, Domingo Rodriguez, and Brandon Woodside have filed a

motion to strike the pleadings of Plaintiff Donald Roger Burr and to dismiss this case with prejudice.

For the reasons stated herein, the motion should be granted.

I.

This is a pro se civil rights action brought by plaintiff against three Grand Prairie detention

officers. Succinctly stated, plaintiff alleges that defendants used excessive force against him during

his six-day incarceration in the Grand Prairie City Jail in July 2005.1 After defendants filed an

answer raising the affirmative defense of qualified immunity, the court ordered plaintiff to plead

specific facts to overcome the immunity defense in a Rule 7(a) reply. See Order 1/31/06. When

 

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plaintiff failed to comply with that order, the court again directed him to file a Rule 7(a) reply

tailored to the assertion of qualified immunity. This time, plaintiff was warned that "the failure to

file a [ ] reply may result in the imposition of sanctions, including an order dismissing his claims

against these defendants either with or without prejudice." Order, 3/17/06, citing Fed. R. Civ. P.

41(b). In response to that order, plaintiff filed a motion for appointment of counsel and to stay

proceedings, citing his inability to prosecute this action because of injuries sustained in an

automobile accident. The court granted the motion and appointed Renee L. Chafitz, an attorney with

the law firm of Strasburger & Price, to represent plaintiff. See Order, 5/3/06. 

Less than three weeks after her appointment, Chafitz notified the court that plaintiff had not

responded to her letters and failed to return numerous telephone calls. The court ordered plaintiff

to contact his attorney within 10 days, or the appointment would be terminated. See Order, 5/31/06.

Evidently, plaintiff complied with this order as Chafitz participated in the preparation of a joint

scheduling proposal and filed an amended complaint. However, in October 2006, Chafitz once again

asked the court for help in obtaining the cooperation of her client. In response to this request, the

court issued a second order directing plaintiff to contact his attorney within 10 days. See Order,

10/6/06. When plaintiff failed to do so, Chafitz filed a motion to withdraw. As grounds for her

motion, Chafitz alleged:

Counsel initially contacted Mr. Burr through his sister-in-law.

However, the sister-in-law has reported that she is no longer in

contact with the Plaintiff and could not give any forwarding

information.

* * * *

Counsel has not spoken to or otherwise heard from Mr. Burr in more

than two months despite repeated phone calls and letters to him[.]

 

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Counsel for the Plaintiff cannot proceed with this case without Mr.

Burr's participation, including his input and cooperation in signing a

medical authorization and providing a deposition.

The court granted the motion, allowed Chafitz to withdraw, and directed the clerk and opposing

counsel to communicate with plaintiff at his sister-in-law's address in South Carolina--the same

address plaintiff provided to the court in April 2006. See Order, 10/23/06.

While plaintiff was represented by Chafitz, defendants served him with written

interrogatories and document requests. (See Def. App. at 26-31, 32-36, 37-41, 42-46). Defendants

also noticed plaintiff for a deposition on November 9, 2006. (See id. at 47-48). In its order allowing

Chafitz to withdraw, the court directed plaintiff to appear for deposition at the offices of defense

counsel on November 9, 2006 at 10:00 a.m. See Order, 10/23/06. The court warned plaintiff that

"sanctions may be imposed if he fails to appear for this deposition, including an order striking his

pleadings and dismissing this case with prejudice." See id., citing Fed. R. Civ. P. 16(b) &

37(b)(2)(C). Plaintiff failed to appear for this deposition and has not communicated with the court

or defense counsel regarding his absence. (Def. App. at 49-52).

Frustrated by their inability to conduct discovery or prepare for trial, defendants now seek

an order striking plaintiff's pleadings and dismissing this case with prejudice. Plaintiff was ordered

to file a written response to the motion by December 7, 2006, but has failed to do so. The court

therefore considers the motion without a response.

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

 

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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).

Plaintiff has been warned repeatedly throughout this litigation of the need to cooperate with

his attorney and to comply with court orders. At plaintiff's request, the court appointed a lawyer to

represent him, only to have that attorney withdraw because she could not locate her client. Plaintiff

was well-aware of his obligation to notify the court and opposing counsel of his current address and

the consequences of failing to do so. The form 1983 complaint filed by plaintiff states, in pertinent

part:

It is your responsibility to inform the Court of any change of address

and its effective date. Such notice should be marked "NOTICE TO

THE COURT OF CHANGE OF ADDRESS" and shall not include

any motion(s) for any other relief. Failure to file a NOTICE TO THE

COURT OF CHANGE OF ADDRESS may result in the dismissal of

your complaint pursuant to Rule 41(b), Federal Rules of Civil

Procedure.

(Plf. Compl. at 2). Without this information, the court cannot communicate with plaintiff and this

litigation cannot proceed. In addition, plaintiff has not answered written discovery, ignored a court

order requiring him to appear for deposition, and did not file a response to the instant motion to

dismiss. Such conduct "caps a demonstrated history of intransigence and delay." Williams v.

Frasier, 96 Fed.Appx. 217, 2004 WL 906521 at *1 (5th Cir. Apr. 28, 2004). An order striking

plaintiff's pleadings and dismissing this case with prejudice is clearly warranted under the

circumstances. See Day v. Allstate Insurance Co., 788 F.2d 1110, 1113 (5th Cir. 1986) (district

 

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court did not abuse discretion in dismissing lawsuit with prejudice where dismissal came after three

warnings).

RECOMMENDATION

Defendants' motion to strike plaintiff's pleadings and dismiss this case with prejudice [Doc.

#86] should be granted.

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: December 14, 2006.

 

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