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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

TYLER DIVISION

DESMOND TYRELL SMITH, #121780 §

VS. § CIVIL ACTION NO. 6:23cv043

UNKNOWN §

REPORT AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff Desmond Tyrell Smith, a pretrial detainee confined in the Gregg County Jail,

proceeding pro se, filed the above-styled and numbered civil rights lawsuit pursuant to 42 U.S.C. 

§ 1983. The complaint was referred for findings of fact, conclusions of law, and recommendations 

for the disposition of the case.

Plaintiff filed his original complaint on January 24, 2023. On January 26, 2023, the Court 

issued a Deficiency Order (Dkt. #3). Plaintiff was given thirty days from the receipt of the Order 

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

a properly certified in forma pauperis data sheet. He was warned that the lawsuit may be dismissed 

if he did not comply with the Order. 

A review of the Gregg County Jail Records reflects that Plaintiff was released from the

Gregg County Jail on or about February 15, 2023. See

http://beta.co.gregg.tx.us/OdysseyPA/JailingDetail.aspx?JailingID=441689, last visited Mar. 10, 

2023. Plaintiff did not submit a change of address to the Court. On the second page of Plaintiff’s 

original complaint, under “Change of Address,” Plaintiff was informed that the “[f]ailure to file a 

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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.” (Dkt. #1, p. 2). This 

requirement is also memorialized in the Eastern District of Texas Local Rule CV-11(d): “A pro se 

litigant must provide the court with a physical address (i.e., a P.O. Box is not acceptable) and is 

responsible for keeping the clerk advised in writing of the current physical address.” As of today, 

Plaintiff has not provided the Court with a new address. 

Plaintiff has not paid the filing fee nor submitted an application to proceed in forma 

pauperis, or the requisite in forma pauperis data sheet. He has not filed a notice of change of 

address. Plaintiff has not been in contact with the Court. He has not complied with the orders of 

the Court.

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

of the court. McCullough v. Lynaugh, 835 F.2d 1126 (5th Cir. 1988); FED. R. CIV. P. 41(b). The 

exercise of the power to dismiss a case for failure to prosecute or obey a court order is committed 

to the sound discretion of the Court and appellate review is confined solely in whether the Court’s 

discretion was abused. Green v. Forney Eng’g Co., 589 F.2d 243 (5th Cir. 1979); Lopez v. Aransas 

Cnty. Indep. Sch. Dist., 570 F.2d 541 (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 (5th Cir. 1980). Plaintiff has not complied with the Court’s 

orders; thus, the lawsuit should be dismissed.

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 Recommendation

It is therefore recommended that the complaint be dismissed without prejudice for want of 

prosecution and failure to obey an order. FED. R. CIV. P. 41(b). 

Within fourteen (14) days after receipt of the Magistrate Judge’s Report, any party may 

serve, and file written objections to the findings and recommendations contained in the Report.

A party’s failure to file written objections to the findings, conclusions, and 

recommendations contained in this Report within fourteen days after being served with a copy 

shall bar that party from de novo review by the district judge of those findings, conclusions, and 

recommendations and, except on grounds of plain error, from appellate review of unobjected-to 

factual findings and legal conclusions accepted and adopted by the district court. Douglass v. 

United Servs. Auto. Ass’n, 79 F.3d 1415, 1430 (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).

So ORDERED and SIGNED this 12th day of March, 2023.

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