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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

TYLER DIVISION

DANIEL D. DILLARD, #1400285 §

VS. § CIVIL ACTION NO. 6:24cv023

SERGEANT OLUYEMI AKINODE, ET AL. §

REPORT AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff Daniel D. Dillard, a prisoner confined in the Texas Department of Criminal 

Justice, 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 pleading, a Motion for Temporary Restraining Order, on or about 

January 23, 2024, in the Northern District of Texas. Plaintiff did not submit a filing fee or an 

application to proceed in forma pauperis with his Motion. On the same day, the Northern District 

of Texas transferred Plaintiff’s cause of action to the Eastern District of Texas, Tyler Division. 

On January 30, 2024, this court issued a Deficiency Order (Dkt. #6). The court ordered 

Plaintiff to submit either the $405.00 filing fee or file a completed application to proceed in forma 

pauperis and a properly certified in forma pauperis data sheet within thirty days from the receipt 

of the order. Plaintiff was warned that the lawsuit may be dismissed if he did not comply with the 

order. 

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The court received an acknowledgment from Plaintiff indicating that he received the 

Deficiency Order on February 6, 2024. (Dkt. #7). Plaintiff has not paid the filing fee or submitted 

an application to proceed in forma pauperis, or the requisite in forma pauperis data sheet. Plaintiff 

has not requested an extension of time to comply with the court’s order. 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). 

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 

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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 8th day of July, 2024.

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