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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

TEXARKANA DIVISION

GARY SMITH §

v. § Civil Action No. 5:24cv4-RWS-JBB 

 

BRIAN COLLIER, ET AL. §

REPORT AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

The above-referenced case was referred to the undersigned United States Magistrate Judge 

for pretrial purposes in accordance with 28 U.S.C. § 636. The Court recommends Plaintiff’s abovereferenced cause of action be DISMISSED WITHOUT PREJUDICE.

On January 10, 2024, Plaintiff Gary Smith filed this lawsuit complaining of alleged 

violations of his constitutional rights. However, he did not submit a filing fee in the amount of 

$405.00 or an application for leave to proceed in forma pauperis which was accompanied by a 

data sheet or inmate account summary sheet certified by an officer at the institution in which he is 

presently confined.

Therefore, on February 14, 2024, the Court ordered Plaintiff to either (1) pay the statutory 

$405.00 filing fee, or (2) furnish a properly certified in forma pauperis data sheet or inmate account 

summary sheet, which may be obtained from an authorized officer in the law library at the 

institution where he is confined. Dkt. No. 4. The Court explained that commissary slips are not an 

acceptable substitute. The Court further explained that Plaintiff need not submit another in forma 

pauperis form, but only the data sheet. Finally, the Court advised Plaintiff that failure to comply 

with the February 14 Order might result in the dismissal of this lawsuit under Federal Rule of Civil 

Procedure 41(b). 

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That same day, the Court also ordered Plaintiff to file, within thirty days from the date of 

receipt of the Order, a short and plain statement setting forth the Plaintiff’s claims, on a standard 

§1983 lawsuit form and written in a legible manner and no more than 30 pages in length. Dkt. No. 

3. Again, Plaintiff was advised that failure to file an amended pleading which complies with the 

February 14 Order might lead to a recommendation of dismissal for failure to prosecute or to obey 

an order of the Court. 

Plaintiff acknowledged receipt of the orders on March 19, 2024 and April 9, 2024. Dkt. 

Nos. 7, 8. It has been over three months, and Plaintiff has not paid the filing fee or furnished a 

properly certified in forma pauperis data sheet or inmate account summary sheet as ordered by the 

Court. Nor has Plaintiff filed an amended pleading which complies with the February 14 Order.

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

any order of the court. McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988); FED.R.CIV.

P. 41(b). Such a dismissal may be done sua sponte and appellate review is confined to whether the 

district court abused its discretion in dismissing the action. Id. (citing Link v. Wabash Railroad Co., 

370 U.S. 626, 630-31 (1962)).

Plaintiff’s failure to pay the initial partial filing fee or show good cause for the failure to do 

so and/or failure to amend are not actions which threaten the judicial process, rendering dismissal 

with prejudice unwarranted. See McNeal v. Papasan, 842 F.2d 787, 790 (5th Cir. 1988). The

conditions complained of appear to be on-going, giving Plaintiff ample time in which to re-file his 

lawsuit, should he choose to do so, within the two-year limitations period. Upon consideration of

all relevant factors, the Court has determined that the interests of justice are best served by a

dismissal of this lawsuit without prejudice. It is accordingly 

RECOMMENDED that the above-styled civil action be DISMISSED WITHOUT 

PREJUDICE for failure to prosecute or to obey an order of the Court.

A copy of these findings, conclusions and recommendationsshall be served on all parties in 

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the manner provided by law.

Objections

Any party who objects to any part of these findings, conclusions, and recommendations

must file specific written objections within 14 days after being served with a copy. In order to be 

specific, an objection must identify the specific finding or recommendation to which objection is

made, state the basis for the objection, and specify the place in the Magistrate Judge’s proposed

findings, conclusions, and recommendation where the disputed determination is found. An

objection which merely incorporates by reference or refers to the briefing before the Magistrate 

Judge is not specific, and the district court need not consider frivolous, conclusive, or general

objections. Battle v. United States Parole Commission, 834 F.2d 419, 421 (5th Cir. 1987).

Failure to file specific written objections will bar the objecting party from appealing the 

factual findings and legal conclusions of the Magistrate Judge which are accepted and adopted by 

the district court except upon grounds of plain error. Duarte v. City of Lewisville, 858 F.3d 348, 352 

(5th Cir. 2017).

.

____________________________________

J. Boone Baxter

UNITED STATES MAGISTRATE JUDGE

SIGNED this the 22nd day of July, 2024.

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