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IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF TEXAS 

TYLER DIVISION

ROBERT EARL RICHARDSON §

v. § CIVIL ACTION NO. 6:23cv415

GREGG COUNTY §

REPORT AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

The Plaintiff Robert Richardson, proceeding pro se, filed this civil rights lawsuit under 42

U.S.C. §1983 complaining of alleged deprivations of his constitutionalrights during his confinement 

in the Gregg County Jail. The lawsuit was referred to the undersigned United States Magistrate 

Judge pursuant to 28 U.S.C. §636(b)(1) and (3) and Local Rule CV-72 of the Local Rules of Court 

for the Eastern District of Texas.

On December 13, 2023, Plaintiff was ordered to file an amended complaint setting out a 

short and plain statement of his claim, including a concise statement of his claims, identification of 

whom he wished to sue, the harm he suffered, and the relief sought. A copy of this order wassent 

to Plaintiff at his last known address, but to date, he has not complied, 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 existsthat the letterreached 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., 

70 U.S. 626, 630-31, 82 S.Ct. 1386, 1388-89 (1962). Plaintiff’s failure to prosecute his case or to

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comply with an order of the Court is demonstrated by his failure to file an amended complaint as 

directed.

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 threatened the 

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 comply with the Court’s order 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 Plaintiff’s claims appear to have been 

ongoing when he filed his lawsuit in August of 2023, giving him ample time in which to refile his 

lawsuit, should he choose to do so, within the two-year statute of limitations. Consequently, 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 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.

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

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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).

So ORDERED and SIGNED this 2nd day of February, 2024.

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