IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

LUFKIN DIVISION

BRIAN C. FRANKENFIELD §

VS. § CIVIL ACTION NO. 9:23-cv-217

TDCJ, ET AL. §

REPORT AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff Brian C. Frankenfield, an inmate confined at the Lewis 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 December 5, 2023, Plaintiff was ordered to submit either the full filing fee, $405.00,1or

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. 

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.

1

 The filing fee was changed from $402.00 to $405.00 on December 1, 2023. Therefore, the order should have

stated that the filing fee was $402.00 since Plaintiff’s complaint wasfiled on November 17, 2023 in the United States District

Court for the Southern District of Texas. There is no indication, however, that Plaintiff attempted to pay either amount.

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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).

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 25th day of January, 2024.

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