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IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF TEXAS 

TEXARKANA DIVISION

BRIAN LORD §

v. § CIVIL ACTION NO. 5:23cv83

MERRICK GARLAND §

REPORT AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

The Plaintiff Brian Lord, an inmate of the Federal Correctional Institution at Texarkana 

proceeding pro se, filed this civil action as a challenge to the constitutionality of 18 U.S.C. § 

922(g)(1). The lawsuit was referred 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 August 29, 2023, Plaintiff was ordered to pay an initial partial filing fee of $43.00 or 

show good cause why he could not do so, in accordance with 28 U.S.C. §1915(b). To date, Plaintiff 

has not complied with this order, nor has he responded in any way. The Fifth Circuit has explained 

that where a letter is properly placed in the United States mail, a presumption exists that the letter 

reached its destination in the usual time and was actually received by the person to whom it was 

addressed. Faciane v. Sun Life Assurance Company of Canada, 931 F.3d 412, 420-21 and n.9 (5th 

Cir. 2019).

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); Fed. R. Civ.

P. 41(b). 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)).

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Plaintiff’s failure to pay the initial partial filing fee or show good cause for the failure to do 

so is not an action which threatens the judicial process, rendering dismissal with prejudice 

unwarranted. See McNeal v. Papasan, 842 F.2d 787, 790 (5th Cir. 1988). The imposition of fines 

and costsis not appropriate given the status and nature of this case. The issue complained of appears 

to be on-going, giving Plaintiff ample time in which to re-file his lawsuit, should he choose to do 

so, within the two-year limitations period. 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

It is accordingly recommended that the above-styled civil action be dismissed without 

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 objections within 14 days after being served with a copy.

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. 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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