IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

SHERMAN DIVISION

XAVIER BOOKER, #2414858 §

§

VS. § CIVIL ACTION NO. 4:23cv288

§

SIXTH DIST. CT OF LAMAR CNTY. §

REPORT AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Pro se Plaintiff Xavier Booker filed the above-styled and numbered complaint pursuant to

42 U.S.C. § 1983. On April 4, 2023, the Court ordered Plaintiff to submit a standard § 1983 form

and either pay the $402.00 filing fee or submit a complete application to proceed in forma pauperis

along with the certified copy of his in forma pauperis trust inmate data sheet within thirty days (Dkt.

#3). As Plaintiff has failed to comply with the Court’s Order, he has failed to prosecute his case. 

FED. R. CIV. P. 41(b). 

A district court may dismiss an action for failure to prosecute or to comply with any order

of the court. Campbell v. Wilkinson, 988 F.3d 798, 800 (5th Cir. 2021); FED. R. CIV. P. 41(b). The

exercise of the power to dismiss for failure to prosecute is committed to the sound discretion of the

court, and appellate review is confined solely to whether the court’s discretion was abused. Green

v. Forney Eng’g Co., 589 F.2d 243, 247 (5th Cir. 1979); Lopez v. Aransas Cnty. Indep. Sch. Dist.,

570 F.2d 541, 544 (5th Cir. 1978). Not only may a district court dismiss for want of prosecution

upon motion of a defendant, but it may also sua sponte dismiss an action whenever necessary to

achieve the orderly and expeditious disposition of cases. Anthony v. Marion Cnty. Gen. Hosp., 617

F.2d 1164, 1167 (5th Cir. 1980). In the present case, Plaintiff failed to comply with the Court’s

Order to submit a standard § 1983 form, and either pay the $402.00 filing fee or submit an

application to proceed in forma pauperis along with the required inmate trust information; thus, the

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case can also be dismissed for these failures. See Wildhaber v. United States, No. 3:19-CV-2045-K

(BH), 2020 WL 2544021, at *1 (N.D. Tex. Apr. 20, 2020) (“Because [plaintiff] failed to comply

with the orders that he pay the filing fee or file an IFP application with a certificate of inmate trust

account, and has not otherwise responded to it, this case should be dismissed for failure to prosecute

or follow an order of the court.”), report and recommendation adopted, No. 3:19-CV-2045-K, 2020

WL 2542735 (N.D. Tex. May 19, 2020); Jeffery v. Davis, No. 3:20-CV-164-C (BH), 2020 WL

2363458, at *1 (N.D. Tex. Apr. 20, 2020) (“This case should be dismissed without prejudice under

Fed. R. Civ. P. 41(b) for failure to prosecute or follow orders of the court[.]”), report and

recommendation adopted, No. 3:20-CV-164-C-BH, 2020 WL 2343157 (N.D. Tex. May 11, 2020).1

It is solely Plaintiff’s responsibility to pay the required fee and submit the necessary documentation,

and Plaintiff has failed to comply with the Court’s Order (Dkt. #3). Accordingly, the case should

be dismissed for failure to prosecute. See FED. R. CIV. P. 41(b).

CONCLUSION AND RECOMMENDATION

Based on the foregoing, the Court recommends that this case be DISMISSED WITHOUT

PREJUDICE under Federal Rule of Civil Procedure 41(b). See FED. R. CIV. P. 41(b). 

Within fourteen (14) days after service of the magistrate judge’s report, any party must serve

and file specific written objections to the findings and recommendations of the magistrate judge. 

28 U.S.C. § 636(b)(1)( c). In order to be specific, an objection must identify the specific finding or

1 Dismissal with prejudice for failure to obey an order or failure to prosecute is an extreme sanction that should

be employed only when the plaintiff’s conduct has threatened the integrity of the judicial process in such a way that

leaves the court no choice but to deny the plaintiff benefits. McNeal v. Papasan, 842 F.2d 787, 790 (5th Cir. 1988). A

court should consider lesser sanctions, such as fines, costs, damages, conditional dismissals, and dismissals without

prejudice, among other lesser measures prior to dismissing a case with prejudice. Id. at 793. In the present case, Plaintiff has

failed to comply with the Court’s Order to submit a standard § 1983 form and either pay the filing fee or submit a complete

application to proceed in forma pauperis. Plaintiff has failed to act according to the Court’s Order. However, Plaintiff’s

intentions and actions do not threaten the judicial process, and a dismissal with prejudice is inappropriate.

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recommendation to which objection is made, state the basis for the objection, and specify the place

in the magistrate judge’s report and recommendation where the disputed determination is found. 

An objection that merely incorporates by reference or refers to the briefing before the magistrate

judge is not specific.

Failure to file specific, written objections will bar the party fromappealing the unobjected-to

factual findings and legal conclusions of the magistrate judge that are accepted by the district court,

except upon grounds of plain error, provided that the party has been served with notice that such

consequences will result from a failure to object. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d

1415, 1417 (5th Cir. 1996) (en banc), superseded by statute on other grounds, 28 U.S.C. § 636(b)(1)

(extending the time to file objections from ten to fourteen days).

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