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IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF TEXAS

TYLER DIVISION

DUSTAN R. KILLINGSWORTH, #09254 §

VS. § CIVIL ACTION NO. 6:23cv562

TAWANNA KILLINGSWORTH, ET AL. §

REPORT AND RECOMMENDATION 

OF THE UNITED STATES MAGISTRATE JUDGE

Plaintiff Dustan Killingsworth, an inmate at the Rains County Jail proceeding pro se and 

seeking to proceed in forma pauperis, filed this civil rights lawsuit pursuant to 42 U.S.C. § 1983 

alleging purported violations of his constitutional rights. The case was referred to the undersigned 

United States Magistrate Judge for findings of fact, conclusions of law, and recommendations for 

the disposition of the case. 

On April 26, 2024, the Court reopened Plaintiff’s lawsuit, upon his own motion, (Dkt. #6) 

and ordered him to amend his complaint within thirty days from the receipt of the Order. The Order 

warned Plaintiff that the failure to comply may result in the dismissal of his lawsuit. A copy of this 

Order was sent to Plaintiff at his address, with an acknowledgment card. The docket reflects that 

the mail was returned as “undeliverable,” with a specific notation that it was “refused” and that 

the amended complaint was returned back to the Court, (Dkt. #12). Despite additional time to do 

so, Plaintiff has not filed his amended complaint. It seems he also refused the courtesy copy of a 

section 1983 complaint sent to him so that he could easily comply with the order. Moreover, 

plaintiff has also not communicated with the Court since the Court reopened his lawsuit. 

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.”). The district court has both specific and inherent power 

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to control its own docket “to control the disposition of the causes on its docket with economy of 

time.” See U.S. v Colomb, 419 F.3d 292, 299 (5th Cir. 2005); see also Miller v. Thaler, 434 F. 

App’x 420, 421 (5th Cir. 2011) (unpublished).

Here, Killingsworth filed a motion to reopen his lawsuit, but failed to file an amended 

complaint as ordered. The time to do so has since expired, and Plaintiff thus failed to comply with 

an order of the Court. Plaintiff’s failure to comply with an order of the Court 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, it is recommended that the above-styled action be dismissed, without 

prejudice, for Plaintiff’s failure to comply with an order of the Court. 

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 14th day of June, 2024.

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