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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

TYLER DIVISION

DAVID THOMAS, #79719 §

VS. § CIVIL ACTION NO. 6:23cv473

PENNY CLARKSTON, ET AL. §

REPORT AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff David Thomas, a prisoner confined in the Smith County Jail, proceeding pro se

and in forma pauperis, 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.

On October 16, 2023, the Court issued an Initial Partial Filing Fee Order permitting 

Plaintiff to proceed in this cause of action pursuant to 28 U.S.C. § 1915 and assessing an initial 

partial filing fee of $18.93. (Dkt. #5). He was warned that the failure to pay the initial partial filing 

fee within 30 days may result in the dismissal of the lawsuit. 

On November 3, 2023, Plaintiff filed a motion for an extension of time to pay the initial 

partial filing fee (Dkt. #6). The Court granted Plaintiff’s motion and instructed Plaintiff to submit 

the initial partial filing fee within 30 days of receipt of the Order. (Dkt. #7). The Court reminded 

Plaintiff that the failure to timely comply would result in the dismissal of his complaint. 

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Plaintiff submitted two letters to the Court stating that he had received the Order and his 

intention to comply (Dkt. ##8, 9). The last letter was received November 29, 2023. (Dkt. #9)). As 

of today, the Court has not received a payment from Plaintiff towards the initial partial filing fee.

The Prison Litigation Reform Act of 1996 (PLRA) requires prisoners seeking to bring civil 

actions to pay an initial partial filing fee and subsequently pay the remainder of the full filing fee. 

Prisoners may proceed on claims without prepayment of the full filing fee, but they will be 

responsible for paying it in time. Plaintiff was ordered to pay the requisite initial partial filing fee 

of $18.93, but he has not complied with the Order.

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 paid the initial partial filing fee 

in this case; thus, the lawsuit should be dismissed for want of prosecution and failure to obey an 

order.

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). 

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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 30th day of January, 2024.

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