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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

TYLER DIVISION

RANDY K. DANIELS, #0210-129276 §

VS. § CIVIL ACTION NO. 6:23cv343

TYLER POLICE DEPARTMENT, ET AL. §

REPORT AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff Randy K. Daniels, a prisoner confined in the Smith County Jail, proceeding pro 

se, filed the above-styled and numbered civil rights lawsuit pursuant to 42 U.S.C. § 1983. The 

complaint was referred for findings of fact, conclusions of law, and recommendations for the 

disposition of the case.

Plaintiff filed his original complaint on July 5, 2023. (Dkt. #2). Plaintiff’s claims against

the Tyler Police Department and Smith County law enforcement, as well as conditions of his 

confinement in the Smith County Jail, were severed from his claims against the UT Hospital and 

the failure of the Rusk County Sheriff’s Office and the Henderson Police Department. (Dkt. #1);

see Cause No. 6:23cv-cv-276. 

After Plaintiff’s claims arising in Smith County, Texas were severed in Cause No. 6:23-

cv-27, the Court here issued an order instructing Plaintiff to either pay the requisite filing fee of 

$402 or file an application to proceed in forma pauperis (IFP), along with a certified IFP data sheet 

or inmate trust fund account statement, within 30 days of the receipt of the order. (Dkt. #3). On 

August 14, 2023, Plaintiff filed a motion for leave to proceed IFP. (Dkt. #6). He, however, did not 

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attach a certified IFP data sheet or inmate trust fund account statement to his motion for leave to 

proceed IFP. 

On August 17, 2023, the Court issued a second Deficiency Order (Dkt. #7), noting 

Plaintiff’s deficiency and giving him 30 days from the receipt of the order to submit a completed 

application to proceed IFP and a properly certified IFP data sheet. Plaintiff was warned that the 

lawsuit may be dismissed if he did not comply with the order. Since that time, Plaintiff has not 

submitted an application to proceed IFP, or the requisite certified IFP data sheet. Plaintiff has not 

filed an extension of time to file an application to proceed IFP in this case. He has not complied 

with the order of the Court.

A district court may dismiss an action for failure to prosecute or to comply with any order 

of the court. McCullough v. Lynaugh, 835 F.2d 1126 (5th Cir. 1988); FED. R. CIV. P. 41(b). The 

exercise of the power to dismiss a case for failure to prosecute or obey a court order 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 (5th Cir. 1979); Lopez v. Aransas 

Cnty. Indep. Sch. Dist., 570 F.2d 541 (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 necessary to achieve the orderly and expeditious disposition of cases. Anthony v. Marion 

Cnty. Gen. Hosp., 617 F.2d 1164 (5th Cir. 1980). Plaintiff has not complied with the Court’s order; 

thus, the lawsuit should be dismissed.

 Recommendation

It is therefore recommended that the complaint be dismissed without prejudice for want of 

prosecution and failure to obey an order. FED. R. CIV. P. 41(b). 

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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), superseded by statute on 

other grounds, 28 U.S.C. § 636(b)(1) (extending the time to file objections from ten to fourteen 

days).

So ORDERED and SIGNED this 23rd day of October, 2023.

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