1

 Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JOHN RICE §

§

Plaintiff, §

§

VS. § NO. 3-05-CV-0960-L

§

DIRECTORY DISTRIBUTING §

ASSOCIATES, ET AL. §

§

Defendants. §

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 an unspecified civil action brought by Plaintiff John Rice, appearing pro se, against

Directory Distributing Associates and "others." On May 11, 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 May 20, 2005, a Spears1 questionnaire was sent to plaintiff at the address listed in his complaint.

Plaintiff was directed to answer the questionnaire within 20 days or the case would be dismissed.

No response was filed. On June 17, 2005, another copy of the Spears questionnaire was sent to

 

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plaintiff by certified mail, return receipt requested. Three weeks later, the unopened envelope

containing the questionnaire was returned to the clerk with a notation, "Return to Sender." The court

now determines 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 two Spears questionnaires to plaintiff at a post office box in Houston, Texas--

the only address listed in his complaint. The first questionnaire remains unanswered. The second

questionnaire was returned to the court unclaimed. Apparently, plaintiff either no longer maintains

his post office box or refuses to claim his mail. Without full and complete answers to the Spears

questionnaire, the court cannot screen plaintiff's complaint and this litigation cannot proceed.

Dismissal is clearly appropriate under the circumstances.

 

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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: July 13, 2005.

 

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