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IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF TEXAS 

TYLER DIVISION

JOSEPH DASEK §

v. § CIVIL ACTION NO. 6:23cv495

EAST TEXAS TREATMENT FACILITY §

REPORT AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

The PlaintiffJoseph Dasek, proceeding pro se, filed this civil rightslawsuit under 42 U.S.C.

§1983 complaining of alleged deprivations of his constitutional rights during his confinement in the 

East Texas Treatment Facility in Henderson, Texas. The lawsuit was referred to the undersigned 

United States Magistrate Judge pursuant to 28 U.S.C. §636(b)(1) and (3) and the Amended Order 

for the Adoption of Local Rules for the Assignment of Duties to United States Magistrate Judges.

On October 23, 2023, Plaintiff was ordered to pay the statutory filing fee of $402.00 or to 

seek leave to proceed in forma pauperisin accordance with 28 U.S.C. §1915(b). By separate order, 

Plaintiff was directed to file an amended complaint setting forth a short and plain statement of his 

claims. Copies of these orders were sent to Plaintiff at his last known address, but to date, he has 

not complied, nor has he responded in any way. The Fifth Circuit has explained that where a letter 

is properly placed in the United States mail, a presumption exists that the letter reached its 

destination in the usual time and was actually received by the person to whom it was addressed. 

Faciane v. Sun Life Assurance Company of Canada, 931 F.3d 412, 420-21 and n.9 (5th Cir. 2019).

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., 

70 U.S. 626, 630-31, 82 S.Ct. 1386, 1388-89 (1962). Plaintiff’s failure to prosecute his case or to

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comply with orders of the Court is demonstrated by his failure to file an amended complaint or to 

pay the filing fee or seek leave to proceed in forma pauperis.

Dismissal with prejudice for failure to prosecute or to obey an order of the Court is an 

extreme sanction which should be employed only when "the plaintiff's conduct has threatened the 

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

plaintiffits benefit." McNeal v. Papasan, 842 F.2d 787, 790 (5thCir. 1988), citing Rogers v. Kroger 

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

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

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

Plaintiff’s failure to comply with the Court’s orders is not an action which threatens the 

judicial process, rendering dismissal with prejudice unwarranted. The imposition of fines and costs 

is not appropriate given the status and nature of this case. The Plaintiff’s claims appear to have been 

ongoing when he filed his lawsuit in October of 2023, giving him ample time in which to refile his 

lawsuit, should he choose to do so, within the two-year statute of limitations. Consequently, the 

Court has determined that the interests of justice are best served by a dismissal of this lawsuit 

without prejudice.

RECOMMENDATION

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 recommendations shall be served on all parties in 

the manner provided by law. Any party who objects to any part of these findings, conclusions, and 

recommendationsmustfile specificwritten objectionswithin 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

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

general objections. See 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).

So ORDERED and SIGNED this 30th day of November, 2023.

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