Banks v. Lee et al

Filing 7

MEMORANDUM RULING: The Court DECLINES TO ADOPT 6 REPORT AND RECOMMENDATION of the Magistrate Judge re 1 Complaint filed by Perry Maurice Banks as stated in this ruling. Accordingly, the Court will permit Plaintiff one more opportunity to pursue his claims before resorting to dismissal. A separate notice of intent to dismiss will issue separately. Signed by Judge Robert G James on 5/18/09. (crt,DickersonSld, D)

RECEIVED USDC, WESTERN DISTRICT OF LA. TON~. OORE, CLE~$ M DATE BY
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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA MONROE DIVISION

PERRY MAURICE BANKS VERSUS CHAD LEE, ET AL.

CIVIL ACTION NO. 08-1909 JUDGE ROBERT G. JAMES MAG. JUDGE KAREN L. HAYES MEMORANDUM RULING

Before the Court is Plaintiff Maurice Banks' civil rights complaint filed on December 3, 2008. On April 22, 2009, Magistrate Judge Karen L. Hayes issued a Report and Recommendation [Doc. No. 6], recommending that his complaint be dismissed pursuant to Federal Rule of Civil Procedure 41(b) because Plaintiff failed to comply with a court order. For the following reasons, the Court DECLINES TO ADOPT the Report and Recommendation. On March 9, 2009, Plaintiff was ordered to amend his civil rights complaint by April 13, 2009. [Doc. No. 4]. Plaintiff failed to do so. Federal Rule of Civil Procedure Rule 41(b) permits the dismissal of an action for failure to comply with a court order. See FED. R. Civ. P. 4 1(b). However, a dismissal with prejudice is "an extreme sanction that deprives the litigant of the opportunity to pursue his claim." Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1190(5th Cir. 1992) (internal quotations omitted). The United States Court of Appeals for the Fifth Circuit has stated that a dismissal with prejudice is appropriate only when "(1) there is a clear record of delay or contumacious conduct by the plaintiff,.
. .

.(2)

the. .court has expressly determined that lesser sanctions would not prompt diligent prosecution, or [(3)] the record shows that the district court employed lesser sanctions that proved to be futile." Id.

Inthis case, none ofthe foregoing has occurred. Accordingly, the Court will permit Plaintiff one more opportunity to pursue his claims before resorting to dismissal. A separate notice of intent to dismiss will issue separately. MONROE, LOUISIANA, this
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day of May, 2009.

~ UNITED STATES DISTRICT JUDGE

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