IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

BEAUMONT DIVISION

JAMES LEE POLK §

VS. § CIVIL ACTION NO. 1:23-cv-437

A. GUZMAN §

REPORT AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff James Lee Polk, an inmate confined at the Smith Unit of the Texas Department of

Criminal Justice, Correctional Institutions Division, proceeding pro se, brought the above-styled

lawsuit pursuant to 42 U.S.C. § 1983.

The above-styled action was referred to the undersigned magistrate judge pursuant to 28

U.S.C. § 636 and the Local Rules for the Assignment of Duties to the United States Magistrate Judge

for findings of fact, conclusions of law, and recommendations for the disposition of the case.

Discussion

On December 8, 2023, Plaintiff was ordered to either pay the filing fee or submit an

Application to Proceed In Forma Pauperis and a statement certified by an authorized prison official

showing his average balance in and deposits into Plaintiff’s inmate trust account for the six month

period immediately preceding the filing of the complaint. Plaintiff’s compliance was due on or

before the expiration of twenty (20) days from the date of the order. 

Fed. R. Civ. P. 41(b) authorizes the district court to dismiss an action for failure to prosecute

or for failure to comply with any court order. Larson v. Scott, 157 F.3d 1030, 1031 (5th Cir. 1998). 

“This authority [under Rule 41(b)] flows from the court’s inherent power to control its docket and

prevent undue delays in the disposition of pending cases.” Boudwin v. Graystone Ins. Co., 756 F.2d

399, 401 (5th Cir. 1985) (citing Link v. Wabash, R.R. Co., 370 U.S. 626, 629 (1962)). 

As of this date, Plaintiff has neither paid the $405.00 filing fee nor submitted a properly

supported Application to Proceed In Forma Pauperis as ordered. Accordingly, Plaintiff has failed

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to diligently prosecute this case. Therefore, this case should be dismissed for want of prosecution

pursuant to FED. R. CIV. P. 41(b).

Recommendation

This case should be dismissed without prejudice pursuant to FED. R. CIV. P. 41(b).

Objections

Within fourteen days after being served with a copy of the magistrate judge’s report, any

party may serve and file written objections to the findings of facts, conclusions of law and

recommendations of the magistrate judge. 28 U.S.C. § 636 (b)(1)(C).

Failure to file written objections to the proposed findings of facts, conclusions of law and

recommendations contained within this report within fourteen days after service shall bar an

aggrieved party from the entitlement of de novo review by the district court of the proposed findings,

conclusions and recommendations and from appellate review of factual findings and legal

conclusions accepted by the district court except on grounds of plain error. Douglass v. United

Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc); 28 U.S.C. § 636(b)(1); FED. R.

CIV. P. 72.

.

___________________________________

Christine L Stetson

UNITED STATES MAGISTRATE JUDGE SIGNED this the 5th day of February, 2024.

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