1

 Petitioner was convicted of possession of stolen mail in violation of 18 U.S.C. § 1708, possessing and uttering

a forged security in violation of 18 U.S.C. § 513(a), and illegal reentry after deportation in violation of 8 U.S.C. §

1326(a) & (b)(1). As a result of one or more of those convictions, an immigration judge ordered petitioner removed to

Nigeria.

2

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

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

INCREASE EBONG ISANG §

§

Petitioner, §

§

VS. § NO. 3-05-CV-1761-H

§

UNITED STATES OF AMERICA §

§

Respondent. §

FINDINGS AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

Petitioner Increase Ebong Isang, appearing pro se, has filed an application for writ of coram

nobis pursuant to 28 U.S.C. § 1651. For the reasons stated herein, the application should be

dismissed for want of prosecution.

I.

On August 30, 2005, petitioner, a native and citizen of Nigeria, filed this action challenging

three federal criminal convictions and a final order of deportation.1

 On September 7, 2005, a Spears2

questionnaire was sent to petitioner at the address he provided to the court. Petitioner failed to

answer the questionnaire as required. A second questionnaire was mailed to petitioner at the same

address on October 7, 2005. Four days later, on October 11, 2005, the unopened envelope

containing the first questionnaire was returned to the clerk with the notation, "Returned to Sender.

Attempted Unknown." The court now determines that this case should be dismissed without

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

 

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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 Spears questionnaire to petitioner at the Department of Homeland Security

detention facility in El Paso, Texas--the return address listed on the envelope in which his complaint

was mailed. However, petitioner is no longer incarcerated at that facility and has not provided the

court with his current address. Without this information, the court cannot communicate with

petitioner and this litigation cannot proceed. Dismissal is the only option available under the

circumstances. See Blackmon v. Texas Board of Pardons and Paroles, No. 3-04-CV-1520-N, 2004

WL 1809746 at *1 (N.D. Tex. Aug. 12, 2004) (Kaplan, J.), rec. adopted, 2004 WL 2049218 (N.D.

Tex. Sept. 3, 2004) (dismissing complaint for failure to provide court with current address).

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

 

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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: October 20, 2005.

 

 

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