Vallair v. Arnold et al
MEMORANDUM ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION that this case be dismissed without prejudice pursuant to FRCP 41(b). Signed by Judge Marcia A. Crone on 7/29/14. (mrp, )
UNITED STATES DISTRICT COURT
JOHN A. VALLAIR, III,
OFFICER ARNOLD, et al.,
EASTERN DISTRICT OF TEXAS
CIVIL ACTION NO. 1:11-CV-436
MEMORANDUM ORDER ADOPTING THE MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION
Plaintiff John A. Vallair, III, a prisoner currently confined at the McConnell Unit of the
Texas Department of Criminal Justice, Correctional Institutions Division, proceeding pro se,
brought this civil rights action pursuant to 42 U.S.C. § 1983.
The court ordered that this matter be referred to the Honorable Keith F. Giblin, United
States Magistrate Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and
orders of this court. The magistrate judge recommends dismissing the case without prejudice
pursuant to Federal Rule of Civil Procedure 41(b).
The court has received and considered the Report and Recommendation of United States
Magistrate Judge filed pursuant to such order, along with the record, pleadings and all available
evidence. No objections to the Report and Recommendation of United States Magistrate Judge
were filed by the parties.
Because the statute of limitations would bar future litigation of plaintiff’s claims, a
dismissal would act as a dismissal with prejudice. A dismissal with prejudice is appropriate only
if there is a clear record of delay or contumacious conduct by the plaintiff, and if lesser sanctions
would not serve the interests of justice. Coleman v. Sweetin, 745 F.3d 756, 766 (5th Cir. 2014).
In this case, plaintiff has exhibited a clear record of delay and contumacious conduct by repeatedly
declining to comply with orders regarding the filing fee. Plaintiff has been advised that he is
responsible for paying the filing fee, but he has declined to pay the initial partial filing fee or to
show good cause for his failure to do so. Title 28 U.S.C. § 1915 sets forth the payment schedule
for prisoners seeking leave to proceed in forma pauperis. The interests of justice would not be
served by allowing plaintiff to proceed without paying the initial partial filing fee set in accordance
with the statute and without showing good cause for not paying. However, the court will allow
plaintiff to reopen the case by paying the initial partial filing fee, or showing good cause for his
failure to do so, within thirty days of the date the judgment is entered.
Accordingly, the findings of fact and conclusions of law of the magistrate judge are
correct, and the report of the magistrate judge is ADOPTED. A final judgment will be entered
in this case in accordance with the magistrate judge’s recommendation.
SIGNED at Beaumont, Texas, this 7th day of September, 2004.
SIGNED at Beaumont, Texas, this 29th day of July, 2014.
MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE
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