Busch v. CPS et al

Filing 8

***Vacated per 10 Order*** Findings, Conclusions, and Recommendation: This case should be dismissed without prejudice under Fed. R. Civ. P. 41(b) for failure to prosecute or follow orders of the court. (Ordered by Magistrate Judge Irma Carrillo Ramirez on 6/23/2016) (mcrd) Modified on 6/24/2016 (mcrd).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
PHIL BUSCH,
Plaintiff,
vs.
CPS, et. al,
Defendants.

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No. 3:16-CV-1378-L-BH

Referred to U.S. Magistrate Judge

FINDINGS, CONCLUSIONS AND RECOMMENDATION
Pursuant to Special Order No. 3-251, this case has been automatically referred for screening.
Based on the relevant filings and applicable law, the case should be dismissed without prejudice for
failure to prosecute or follow orders of the court.
I. BACKGROUND
On May 19, 2016, the plaintiff filed a civil rights action against various individuals,
including employees of Child Protective Services, well-known ministers, a presidential candidate,
and an attorney. (See doc. 3.) On that date, he was provided with the Court’s Instructions to a NonPrisoner Pro Se Plaintiff. (doc. 2.) It specifically states:
2.

Address Change - You must notify the Court if your address changes, or your case
may be dismissed. If you are an ECF user, follow the procedures in the ECF
Administrative Procedures Manual to update your address. If you are not an ECF
user, promptly file a written change of address notice in your case.

(Id.) On June 6, 2016, the Court entered an order granting the plaintiff’s motion to proceed in forma
pauperis (IFP) that again specifically advised that he was required to notify the Court of any change
of address, and that failure to do so could result in dismissal of the case. (See doc. 6). That order,
which was mailed to the address provided by the Plaintiff, was returned as undeliverable on June
21, 2016. (See doc. 7.) It appears that the plaintiff has changed addresses without notifying the
Court as directed.

II. INVOLUNTARY DISMISSAL
Rule 41(b) of the Federal Rules of Civil Procedure permits a court to dismiss an action sua
sponte for failure to prosecute or follow orders of the court. McCullough v. Lynaugh, 835 F.2d
1126, 1127 (5th Cir. 1988) (§ 1983 prisoner action). This authority flows from a court’s inherent
power to control its docket, prevent undue delays in the disposition of pending cases, and avoid
congested court calendars. Link v. Wabash R.R. Co., 370 U.S. 626, 629-31 (1962). The instructions
and order dated June 6, 2016, both advised the plaintiff that failing to file a change of address could
result in dismissal of this action. Because he failed to follow a court order or otherwise show that
he intends to proceed with his case, his case should be dismissed under Rule 41(b) for failure to
prosecute or follow orders of the court.
III. RECOMMENDATION
This case should be dismissed without prejudice under Fed. R. Civ. P. 41(b) for failure to
prosecute or follow orders of the court.
SIGNED this 23rd day of June, 2016.

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IRMA CARRILLO RAMIREZ
UNITED STATES MAGISTRATE JUDGE

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INSTRUCTIONS FOR SERVICE AND
NOTICE OF RIGHT TO APPEAL/OBJECT
A copy of these findings, conclusions and recommendation shall be served on all parties in
the manner provided by law. Any party who objects to any part of these findings, conclusions and
recommendation must file specific written objections within fourteen days after being served with
a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). In order to be specific, an objection must
identify the specific finding or recommendation to which objection is made, state the basis for the
objection, and specify the place in the magistrate judge’s findings, conclusions and recommendation
where the disputed determination is found. An objection that merely incorporates by reference or
refers to the briefing before the magistrate judge is not specific. Failure to file specific written
objections will bar the aggrieved party from appealing the factual findings and legal conclusions of
the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain
error. See Douglass v. United Servs. Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).

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IRMA CARRILLO RAMIREZ
UNITED STATES MAGISTRATE JUDGE

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