IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

TYLER DIVISION

KEVIN JAMES KOHUTE #156767 §

VS. § CIVIL ACTION NO. 6:23cv386

SHERIFF LARRY SMITH §

REPORT AND RECOMMENDATION 

OF THE UNITED STATES MAGISTRATE JUDGE

Plaintiff, an inmate of the Smith County Jail proceeding pro se, filed a civil rights 

complaint pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights. (Dkt. #1.)

The case was referred to the undersigned for findings of fact, conclusions of law, and 

recommendations for the disposition of the case.

On August 8, 2023, the Court observed that Plaintiff had neither paid the required filing 

fee nor sought leave to proceed in forma pauperis (IFP). (Dkt. #3.) Accordingly, the Court gave 

him thirty days to satisfy the filing fee requirement to proceed with this case. (Id.) In the same 

Order, the Court observed deficiencies in Plaintiff’s complaint and ordered him to file an amended 

complaint within thirty days. (Id.) The order expressly cautioned that failure to comply could result 

in dismissal. (Id.) On September 1, 2023, the Court granted Plaintiff’s motion for extension and 

extended Plaintiff’s deadline to satisfy the fee requirement for thirty days. (Dkt. #5.)

Plaintiff did not comply with either aspect of the Court’s order. Thus, in addition to failing 

to comply with the Court’s orders, he has neither paid the filing fee for this case nor filed a properly 

supported IFP motion as required by the Prison Litigation Reform Act. See 28 U.S.C. § 1915(a)(2) 

(requiring prisoners seeking pauper status to support their applications with “a certified copy of 

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the trust fund account statement (or institutional equivalent) for the prisoner for the 6-month period 

immediately preceding the filing of the complaint”).

Moreover, the Court’s last mailing to Plaintiff was returned as undeliverable, marked that 

he is no longer at the jail address. (Dkt. #6.) It is well-settled that a plaintiff has an ongoing 

obligation and responsibility to inform the Court of his whereabouts through a current mailing 

address. See Martinez-Reyes v. United States, 2016 WL 8740494 *4 (S.D. Tex. Oct. 10, 2016) 

(explaining that “litigants, including prisoners, bear the burden of filing notice of a change of 

address in such a way that will bring attention of the court to address change.”) (quoting Theede 

v. U.S. Dep’t of Labor, 172 F.3d 1262, 1267 (10th Cir. 1999)). This requirement is memorialized 

in the Local Rules of the Eastern District of Texas: “A pro se litigant must provide the court with 

a physical address (i.e., a post office box is not acceptable) and is responsible for keeping the clerk 

advised in writing of his or her current physical address.” Local Rule CV-11(d). The Court 

expressly advised Plaintiff of this requirement in its original deficiency order, warning him that 

failure to file a prompt notice of any change of address is grounds for dismissal. (Dkt. #3 at 3.)

A district court may dismiss an action for the failure of a litigant to prosecute or to comply

with any order of the court. Fed. R. Civ. P. 41(b); see also McCullough v. Lynaugh, 835 F.2d 1126, 

1127 (5th Cir. 1988) (“The court possesses the inherent authority to dismiss the action sua sponte, 

without motion by a defendant.”). Dismissal with prejudice for failure to comply with a court order 

is an extreme sanction that should be employed only when “the plaintiff’s conduct has threatened 

the integrity of the judicial process [in a way that] leav[es] the Court no choice but to deny that 

plaintiff its benefit.” McNeal v. Papasan, 842 F.2d 787, 790 (5th Cir. 1988) (citing Rogers v. 

Kroger Co., 669 F.2d 317, 321 (5th Cir. 1982)). A court should consider lesser sanctions, such as 

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fines, costs, damages, conditional dismissals, and dismissal without prejudice, among other lesser 

measures, prior to dismissing an action with prejudice. McNeal, 842 F.2d at 793.

Here, Plaintiff’s failure to comply with the Court’s orders is not an action that threatens the 

judicial process—thereby rendering a dismissal with prejudice unwarranted. Therefore, upon

consideration of all relevant factors, the Court has determined that the interests of justice are best

served by a dismissal of this case without prejudice.

RECOMMENDATION

Accordingly, the undersigned recommends that this action be dismissed without prejudice 

for Plaintiff’s failure to comply with an order of the Court and failure to take the steps necessary 

to prosecute this case.

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).

So ORDERED and SIGNED this 17th day of October, 2023.

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