Enwere v. Walmart Store

Filing 10

***Vacated per 14 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, unless the plaintiff files her answers to the questionnaire within the time for objecting to this recommendation, or some other deadline set by the court. (Ordered by Magistrate Judge Irma Carrillo Ramirez on 1/31/2017) (mcrd) Modified on 2/2/2017 (mcrd).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
CATHY ENWERE,
Plaintiff,
vs.
WALMART STORE,
Defendant.

)
)
)
)
)
)

No. 3:16-CV-3455-M-BH
Referred to U.S. Magistrate Judge

FINDINGS, CONCLUSIONS, AND RECOMMENDATION
Pursuant to Special Order 3-251, this pro se case has been automatically referred for judicial
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 December 20, 2016, the plaintiff filed this action against the defendant and moved for
leave to proceed in forma pauperis (IFP), and she was granted IFP status. (See docs. 3, 5, 6.) She
was also sent a questionnaire to obtain more information about her claims on December 21, 2016.
(See doc. 7.)

The questionnaire specifically advised the plaintiff that her answers to the

questionnaire were due within fourteen days, and that a failure to file her answers could result in the
dismissal of her case. (Id.) On January 10, 2017, the plaintiff moved for an unspecified extension
of time to file her answers to the questionnaire. (See doc. 8.) The motion was granted, and the
plaintiff’s deadline for filing her answers was extended until January 21, 2017. (See doc. 8.) That
date has passed, but the plaintiff has not filed her answers or anything else in this case.
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 plaintiff
failed to comply with an order that she provide answers to the questionnaire by January 21, 2017,
despite a warning that failure to do so could result in dismissal of the case. She has not filed
anything else in the case. Because the plaintiff failed to follow a court order or otherwise show that
she intends to proceed with this case, it should be dismissed under Rule 41(b) for failure to prosecute
or follow orders.
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, unless the plaintiff files her answers to the questionnaire
within the time for objecting to this recommendation, or some other deadline set by the court.
SO RECOMMENDED on this 31st day of January, 2017.

___________________________________
IRMA CARRILLO RAMIREZ
UNITED STATES MAGISTRATE JUDGE

2

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 14 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).

___________________________________
IRMA CARRILLO RAMIREZ
UNITED STATES MAGISTRATE JUDGE

3