Busby v. Scott et al

Filing 15

MEMORANDUM OPINION and Order of Dismissal without prejudice for failure to prosecure or obey an order of the Court. All pending motions are denied. Signed by Magistrate Judge K. Nicole Mitchell on 8/26/13. (tkd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
WYATT BUSBY

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v.

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SGT. SCOTT, ET AL.

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CIVIL ACTION NO. 6:13cv274

MEMORANDUM OPINION AND ORDER OF DISMISSAL
The Plaintiff Wyatt Busby, an inmate of the Texas Department of Criminal Justice,
Correctional Institutions Division proceeding pro se, filed this lawsuit complaining of alleged
violations of his constitutional rights. The parties have consented to allow the undersigned United
States Magistrate Judge to enter final judgment in the proceeding pursuant to 28 U.S.C. §636(c).
On May 29, 2013, Busby was ordered to pay an initial partial filing fee of $9.11, pursuant
to 28 U.S.C. §1915(b). Busby received a copy of this order on or before June 10, 2013, but to date,
he has not complied, nor has he responded in any way.
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 (5th Cir. 1988); Rule 41(b), Fed. R.
Civ. P. Busby’s failure to prosecute his case is demonstrated by his failure to pay the initial partial
filing fee as ordered by the Court, or to show good cause for his failure to do so.
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
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, prior to dismissing an action with prejudice. McNeal, 842 F.2d at 793.
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In this case, Busby’s failure to pay the initial partial filing fee or to show good cause for the
failure to do so is not an action which threatens the judicial process, and so dismissal with prejudice
would not be warranted. The imposition of fines and costs is not appropriate given the status and
nature of this case. The incidents complained of began in September of 2012, and so Busby has
ample time in which to re-file his lawsuit, should he choose to do so, within the two-year limitations
period. Upon consideration of all relevant factors, it is hereby
ORDERED that the above-styled civil action be and hereby is DISMISSED without prejudice
for failure to prosecute or to obey an order of the Court. Rule 41(b), Fed. R. Civ. P. It is further
ORDERED that any and all motions which may be pending in this civil action are hereby
DENIED.

So ORDERED and SIGNED this 26th day of August, 2013.

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