IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

BEAUMONT DIVISION

KERNELIUS MARQUIS SHEPHERD, SR. §

VS. § CIVIL ACTION NO. 1:23-cv-397

TDCJ, ET AL. §

REPORT AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff Kernelius Marquis Shepherd, Sr., an inmate confined at the Stiles Unit of the Texas

Department of Criminal Justice, Correctional Institutions Division, proceeding pro se, brought the

above-styled lawsuit. 

The above-styled action was referred to the undersigned magistrate judge pursuant to 28

U.S.C. § 636 and the Local Rules for the Assignment of Duties to the United States Magistrate Judge

for findings of fact, conclusions of law, and recommendations for the disposition of the case.

Discussion

On November 17, 2023, Plaintiff was ordered to submit either the full filing fee, $402.00,

or an Application to Proceed In Forma Pauperis and a statement certified by an authorized prison

official showing the average balance in and deposits into Plaintiff’s inmate trust account for the

preceding six months. Plaintiff’s compliance was due on or before the expiration of twenty (20) days

from the date of the order. 

Plaintiff failed to comply with the order of the court. Accordingly, on December 12, 2023,

a report and recommendation was entered recommending dismissal of the action based on Plaintiff’s

failure to submit either the full filing fee or a proper Application to Proceed In Forma Pauperis.

On January 8, 2024, Plaintiff submitted a letter to the court stating that he was trying to

obtain the statement of his account for the preceding six months. Plaintiff’s letter was liberally

interpreted as a motion for extension of time to submit the statement of his inmate account as

previously ordered. Accordingly, on January 25, 2024, the court granted Plaintiff an extension of

fifteen days to comply with the court’s previous order to either pay the full filing fee or submit a

Case 1:23-cv-00397-MJT-CLS Document 13 Filed 04/09/24 Page 1 of 3 PageID #:

43
proper Application to Proceed In Forma Pauperis. Plaintiff’s compliance was due on or before

February 9, 2024. 

On February 9, 2024, Plaintiff submitted another letter to the court. While not clear, Plaintiff

appears to claim he filed his Application to Proceed In Forma Pauperis on January 18, 2024 in the

Beaumont Division of the United States District Court for the Eastern District of Texas with

Anquintia Tremble.1 However, the court does not have an employee by that name and the docket

does not reflect an Application has been filed. Further, the TDCJ has established procedures for

compliance with the fee-payment requirements of the Prison Litigation Reform Act, and court

intervention is not necessary. See Morrow v. Collins, 111 F.3d 374, 375-76 (5th Cir. 1997). Plaintiff

has neither alleged nor demonstrated he complied with the established procedures, and the court has

not received the Application and statement of his prisoner account from prison authorities.

Federal Rule of Civil Procedure 41(b) authorizes the district court to dismiss an action for

failure to prosecute or for failure to comply with any court order. Larson v. Scott, 157 F.3d 1030,

1031 (5th Cir. 1998). “This authority [under Rule 41(b)] flows from the court’s inherent power to

control its docket and prevent undue delays in the disposition of pending cases.” Boudwin v.

Graystone Ins. Co., Ltd., 756 F.2d 399, 401 (5th Cir. 1985) (citing Link v. Wabash, R.R. Co., 370

U.S. 626, 629 (1962)). 

As of this date, Plaintiff has failed to either pay the filing fee or submit an Application to

Proceed In Forma Pauperis as ordered. Accordingly, Plaintiff has failed to diligently prosecute this

case. Therefore, this action should be dismissed without prejudice pursuant to FED.R.CIV.P. 41(b).

Recommendation

This action should be dismissed without prejudice pursuant to FED. R. CIV. P. 41(b).

1

In his letter, Plaintiff also refers to a Writ of Mandamus filed to allegedly have the court amend his birth

certificate. Further, Plaintiff claims a beloved ancestor has touched his soul and stated that “he has been appointed to be

governor of Texas to allow Greg Abbot [sic] to respectfully retire by the divine rule to initiate an [sic] divining rod for my

grandfather Willie James Sanders for my successfully greatgrand father [sic] Otunbalogun Oluwafemi to be the govoner

[sic].”

Case 1:23-cv-00397-MJT-CLS Document 13 Filed 04/09/24 Page 2 of 3 PageID #:

44
Objections

Within fourteen days after being served with a copy of the magistrate judge’s report, any

party may serve and file written objections to the findings of facts, conclusions of law and

recommendations of the magistrate judge. 28 U.S.C. § 636 (b)(1)(C).

Failure to file written objections to the proposed findings of facts, conclusions of law and

recommendations contained within this report within fourteen days after service shall bar an

aggrieved party from the entitlement of de novo review by the district court of the proposed findings,

conclusions and recommendations and from appellate review of factual findings and legal

conclusions accepted by the district court except on grounds of plain error. Douglass v. United

Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc); 28 U.S.C. § 636(b)(1); FED. R.

CIV. P. 72.

.

___________________________________

Christine L Stetson

UNITED STATES MAGISTRATE JUDGE SIGNED this the 9th day of April, 2024.

Case 1:23-cv-00397-MJT-CLS Document 13 Filed 04/09/24 Page 3 of 3 PageID #:

45