IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

SHERMAN DIVISION

RONALD BRADEN SMITH, #28608078 §

§

VS. § CIVIL ACTION NO. 4:23cv73

 § CRIMINAL ACTION NO. 4:19cr99(1)

UNITED STATES OF AMERICA §

REPORT AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Pro se Movant Ronald Braden Smith filed a motion to vacate, set aside, or correct sentence

pursuant to 28 U.S.C. § 2255, which was referred to the undersigned for findings of fact, conclusions

of law, and recommendations for the disposition of the case. On February 17, 2023, mail that was

sent to Movant was returned, marked “Return to Sender - Inmate No Longer at Facility.” (Dkt. #4). 

It is Movant’s responsibility to keep the Court advised of his current address. In an abundance of

caution, the Court sent an order to Movant to provide his current address no later than Thursday,

March 16, 2023, at 5:00p.m (Dkt. #5). That Order was also returned to the Court, marked “Return

to Sender - Insufficient Address - Inmate No Longer At Facility - Unable to Forward” (Dkt. #6). 

As of today’s date, Movant has failed to provide a current address; accordingly he has failed to

prosecute his case. 

The exercise of the power to dismiss for failure to prosecute is committed to the sound

discretion of the Court, and appellate review is confined solely in whether the Court's discretion was

abused. Green v. Forney Eng’g Co., 589 F.2d 243, 247 (5th Cir. 1979); Lopez v. Aransas Cnty.

Indep. Sch. Dist., 570 F.2d 541, 544 (5th Cir. 1978). Not only may a district court dismiss for want

of prosecution upon motion of a defendant, but it may also, sua sponte, dismiss an action whenever 

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necessaryto achieve the orderly and expeditious disposition of cases. Anthony v. Marion Cnty. Gen.

Hosp., 617 F.2d 1164, 1167 (5th Cir. 1980). The present case should be dismissed for failure to

prosecute. Fed. R. Civ. P. 41(b). 

The Fifth Circuit has repeatedlyheld that dismissal with prejudice for failure to obey an order

or failure to prosecute is an extreme sanction that should be employed only when the plaintiff's

conduct has threatened the integrity of the judicial process in such a way that leaves the court no

choice but to deny the plaintiff benefits. McNeal v. Papasan, 842 F.2d 787, 790 (5th Cir. 1988). 

A court should consider lesser sanctions, such as fines, costs, damages, conditional dismissals and

dismissals without prejudice, among other lesser measures prior to dismissing a case with prejudice. 

Id. at 793. In the present case, Plaintiff failed to prosecute his case. His intentions and actions do

not threaten the judicial process; thus, a dismissal without prejudice is the best course of action at

this time. 

RECOMMENDATION

It is recommended the § 2255 motion be dismissed without prejudice. Id. Within fourteen

days after service of the magistrate judge’s report, any party must serve and file specific written

objections to the findings and recommendations of the magistrate judge. 28 U.S.C. § 636(b)(1)( c).

To be specific, an objection must identifythe specific finding or recommendation to which objection

is made, state the basis for the objection, and specify the place in the magistrate judge’s report and

recommendation where the disputed determination is found. An objection that merely incorporates

by reference or refers to the briefing before the magistrate judge is not specific.

Failure to file specific, written objections will bar the party from appealing the unobjected-to

factual findings and legal conclusions of the magistrate judge that are accepted by the district court,

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except upon grounds of plain error, provided that the party has been served with notice that such

consequences will result from a failure to object See Douglass v. United Servs. Auto. Ass'n, 79 F.3d

1415, 1430 (5th Cir. 1996) (en banc), superceded by statute on other grounds, 28 U.S.C. § 636(b)(1)

(extending the time to file objections from ten to fourteen days).

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