Marsh v. Rodrigues et al

Filing 11

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE re 1 Complaint filed by Luis M Marsh. Signed by Magistrate Judge Don D. Bush on 11/15/2011. (kls, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

LUIS M. MARSH

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VS.

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JERRY RODRIGUES, ET AL.

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CIVIL ACTION NO. 4:10cv642

REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff Luis M. Marsh, a former inmate of the Hopkins County Jail, proceeding pro se and
in forma pauperis, filed the above-styled and numbered civil rights lawsuit pursuant to 42 U.S.C.
§ 1983 while confined to that facility. The complaint was referred for findings of fact, conclusions
of law and recommendations for the disposition of the case.
The complaint was filed on November 19, 2010. He asserted that Defendants gave him the
wrong medication while he was incarcerated and that Defendant Bevill ordered that he be tazed and
left in a cell for 24 hours without clothing or food. On September 29, 2011, the Court issued an
Initial Partial Filing Fee Order granting Plaintiff’s motion to proceed in forma pauperis and directing
Plaintiff to pay an initial partial filing fee of $37.48 against the full filing fee of $350.00 within 30
days of receipt of the Order. He was cautioned that failure to pay the initial partial filing fee as
ordered would result in his lawsuit being dismissed. Plaintiff acknowledged receipt of that Order
on October 11, 2011. Therefore, his payment or a showing of inability to pay was due by November
10, 2011. To date, the Court has not received the filing fee nor has Plaintiff shown that he has
insufficient assets or means by with to pay as ordered.
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The Prison Litigation Reform Act of 1996 (PLRA) requires prisoners seeking to bring civil
actions to pay either the full filing fee or an initial partial filing fee and subsequently pay the
remainder of the full filing fee. Prisoners may proceed on claims without prepayment of the full
filing fee, but they will be responsible for paying it in time. The Plaintiff was ordered to pay the
initial partial filing fee or show that he has insufficient assets or means by with to pay as ordered,
but he has done neither, nor has he provided any excuse for such failure.
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, 1127 (5th Cir. 1988) (per curiam); 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 Engineering Co., 589 F.2d 243, 248
(5th Cir. 1979); Lopez v. Aransas County Independent School District, 570 F.2d 541, 544 (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 County General Hospital, 617 F.2d 1164, 1167
(5th Cir. 1980).
Dismissal with prejudice for failure to obey an order or failure to prosecute 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 plaintiff its
benefit.” McNeal v. Papasan, 842 F.2d 787, 790 (5th Cir. 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,
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prior to dismissing a case with prejudice. Id. at 793. The explanation for employing a dismissal with
prejudice should be stated on the record. Id.
In the present case, the Plaintiff has chosen not to comply with the Court’s Order in order to
proceed on the case. His intentions and actions do not threaten the judicial process and a dismissal
with prejudice is inappropriate. A dismissal without prejudice is the best option available at this
time.
Recommendation
It is accordingly recommended that the Plaintiff’s complaint be dismissed without prejudice
pursuant to 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 shall bar that party from
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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).
SIGNED this 15th day of November, 2011.
.

____________________________________
DON D. BUSH
UNITED STATES MAGISTRATE JUDGE

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