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IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF TEXAS 

TEXARKANA DIVISION

LARRY B. JOHNSON §

v. § CIVIL ACTION NO. 5:23cv34

J. HUGHES, ET AL. §

REPORT AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

The Plaintiff Larry Johnson, an inmate of the Texas Department of Criminal Justice, 

Correctional Institutions Division proceeding pro se, filed this civil rights lawsuit under 42 U.S.C.

§1983 complaining of alleged violations of his constitutional rights. The lawsuit wasreferred to the 

undersigned United States Magistrate Judge pursuant to 28 U.S.C. 636(b)(1) and (3) and the 

Amended Order for the Adoption of Local Rules for the Assignment of Duties to United States 

Magistrate Judges.

On April 5, 2023, Plaintiff was ordered to file an amended complaint setting out a short and 

plain statement of his claims, alleging sufficient facts which, taken as true, state a claim for relief 

which is plausible on its face. The Court provided guidance as to this amended complaint, stating 

Plaintiff should provide a concise statement of each of his claims together with the facts giving rise 

to these claims, a statement of how each named defendant is involved with these facts, an 

explanation of the harm suffered, and the relief sought in the lawsuit. A standard §1983 lawsuit 

form was provided to Plaintiff to assist him in filing his amended complaint. Plaintiff received a 

copy of this order on or before April 17, 2023, but has not complied, nor has he responded to this 

order in any way.

A district court may dismiss an action for failure of a litigant to prosecute or to comply with 

any order of the court. McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988); Rule 41(b),

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F. R. Civ. P. Such a dismissal may be done sua sponte and appellate review is confined to whether 

the district court abused its discretion in dismissing the action. Id., (citing Link v. Wabash Railroad 

Co., 370 U.S. 626, 630-31 (1962)).

Dismissal with prejudice for failure to prosecute or to obey an order of the Court is an 

extreme sanction which should be employed only when "the plaintiff's conduct has threatenedthe 

integrity of the judicial process [in a way which] leav[es] the Court no choice but to deny that 

plaintiffits benefit." McNeal v. Papasan, 842 F.2d 787, 790 (5thCir. 1988) (citing Rogers v.Kroger 

Co., 669 F.2d 317, 321 (5th Cir. 1982)). A court should consider lesser sanctions, such as fines, 

costs, damages, conditional dismissals, and dismissals without prejudice, among other lesser 

measures, prior to dismissing an action with prejudice. McNeal, 842 F.2d at 793.

Plaintiff’s failure to file an amended complaint is not an action which threatens the judicial 

process, rendering dismissal with prejudice unwarranted. The imposition of fines and costs is not 

appropriate given the status and nature of this case. The allegations giving rise to his claim appear 

to have occurred on June 27, 2022, giving Plaintiff adequate time to refile his lawsuit, should he 

choose to do so, within the two-year statute of limitations. Upon consideration of all relevant 

factors, the Court has determined that the interests of justice are best served by a dismissal of this 

lawsuit without prejudice.

RECOMMENDATION

Itis accordingly recommended thatthe above-styled civilrightslawsuit be dismissedwithout 

prejudice for failure to prosecute or to obey an order of the Court.

A copy of these findings, conclusions and recommendationsshall be served on all partiesin 

the manner provided by law. Any party who objects to any part of these findings, conclusions, and 

recommendationsmustfile specificwritten objectionswithin 14 days after being served with a copy.

A copy of these findings, conclusions and recommendations shall be served on all parties in 

the manner provided by law. Any party who objects to any part of these findings, conclusions, and 

recommendationsmustfile specificwritten objectionswithin 14 days after being served with a copy.

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In order to be specific, an objection must identify the specific finding or recommendation 

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

Judge’s proposed findings, conclusions, and recommendation where the disputed determination is 

found. An objection which merely incorporates by reference or refers to the briefing before the 

Magistrate Judge is not specific, and the district court need not consider frivolous, conclusive, or 

general objections. See Battle v. United States Parole Commission, 834 F.2d 419, 421 (5th Cir. 

1987).

Failure to file specific written objections will bar the objecting party from appealing the 

factual findings and legal conclusions of the Magistrate Judge which are accepted and adopted by 

the district court except upon grounds of plain error. Duarte v. City of Lewisville, 858 F.3d 348, 352 

(5th Cir. 2017).

.

____________________________________

J. Boone Baxter

UNITED STATES MAGISTRATE JUDGE

SIGNED this the 26th day of February, 2024.

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