IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

TYLER DIVISION

HERBERT ARCENEAUX #1920251 §

VS. § CIVIL ACTION NO. 6:23cv318

WARDEN, et al. §

REPORT AND RECOMMENDATION 

OF THE UNITED STATES MAGISTRATE JUDGE

Plaintiff, an inmate of the East Texas Treatment Facility proceeding pro se, filed a civil 

rights complaint pursuant to 42 U.S.C. § 1983 along with a motion to proceed in forma pauperis

(IFP). (Dkt. ##1, 2.) The case was transferred to this Court for proper venue and referred to the 

undersigned for findings of fact, conclusions of law, and recommendations for the disposition of 

the case.

On June 30, 2023, the Court ordered Plaintiff to either file the trust account documents 

required to support his IFP application or pay the filing fee within thirty days. (Dkt. #7.) The order 

expressly cautioned that failure to comply could result in dismissal of this case. (Id. at 1.) That 

deadline has long passed, and Plaintiff has failed to comply or to take any other action to prosecute 

this case since that date.

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.”). Dismissal with prejudice for failure to comply with a court order 

is an extreme sanction that should be employed only when “the plaintiff’s conduct has threatened 

the integrity of the judicial process [in a way that] leav[es] the Court no choice but to deny that 

plaintiff its benefit.” McNeal v. Papasan, 842 F.2d 787, 790 (5th Cir. 1988) (citing Rogers v. 

Case 6:23-cv-00318-JDK-JDL Document 8 Filed 09/29/23 Page 1 of 2 PageID #: 4
2

Kroger Co., 669 F.2d 317, 321 (5th Cir. 1982)). A court should consider lesser sanctions, such as 

fines, costs, damages, conditional dismissals, and dismissal without prejudice, among other lesser 

measures, prior to dismissing an action with prejudice. McNeal, 842 F.2d at 793.

Here, Plaintiff’s failure to comply with the Court’s order 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, the undersigned recommends that Plaintiff’s unsupported IFP application be 

denied (Dkt. #2) and this action be dismissed without prejudice for Plaintiff’s failure to comply 

with an Order of the Court and failure to take the steps necessary to prosecute this case.

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 29th day of September, 2023.

Case 6:23-cv-00318-JDK-JDL Document 8 Filed 09/29/23 Page 2 of 2 PageID #: 5