IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

 SHERMA N DIVISION 

MAX KELLY, #2414858 § 

Plaintiff § 

 §

v. § CIVIL ACTION NO. 4:23cv78 

 § 

CHARLES MEADOR, ET AL. § 

Defendants §

REPORT AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

On February 6, 2023, the Court ordered Plaintiff to pay an initial partial filing fee of $8.55

within thirty days to proceed with his case (Dkt. #7). Plaintiff was warned that failure to comply

may result in the dismissal of the case. Although Plaintiff acknowledged receipt of the Order (Dkt.

#8) on February 9, 2023, he failed to comply. In an abundance of caution, on March 13, 2023, the

Court allowed Plaintiff one final opportunity to pay the initial partial filing fee. In its Order, the

Court gave Plaintiff until Monday, April 3, 2023, at 5:00p.m. in which to pay the filing fee (Dkt.

#10). He was again cautioned that the case may be dismissed for failing to comply. Plaintiff

acknowledged receipt of that Order (Dkt. #11) on March 17, 2023, but still failed to pay the filing

fee. It is solely Plaintiff’s responsibility to pay the filing fee; thus, Plaintiff has failed to prosecute

his case.

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

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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 has failed to comply with the Court’s

Orders to pay the initial partial filing fee (Dkt. ##7, 10); thus, the case should be dismissed for failure

to prosecute. 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 complywith 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 WL2542735 (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 orfollow orders of the court[.]”), report and recommendation adopted, No. 3:20-

CV-164-C-BH, 2020 WL 2343157 (N.D. Tex. May 11, 2020).1It is solely Plaintiff’s responsibility

to pay the required fee, and Plaintiff has failed to comply with the Court’s Orders (Dkt. ## 7, 10). 

Accordingly, the case should be dismissed for failure to prosecute. See FED. R. CIV. P. 41(b).

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 Orders to pay the initial partial filing fee. However, Plaintiff.s intentions and

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

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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

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 from appealing 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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