Henry v. Capital One Bank (USA) NA et al

Filing 6

FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE on Case re: 3 Complaint filed by Ray Henry. It is recommended that this action be DISMISSED WITHOUT PREJUDICE for want of prosecution. (Ordered by Magistrate Judge Renee Harris Toliver on 1/2/2018) (epm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
RAY HENRY,
Plaintiff,

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v.
CAPITAL ONE BANK, et al.,
Defendants.

CIVIL CASE NO. 3:17-CV-2962-M-BK

FINDINGS, CONCLUSIONS AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636(b) and Special Order 3, this case was referred to the United
States magistrate judge for pretrial management. For the reasons that follow, this action should
be DISMISSED WITHOUT PREJUDICE for want of prosecution.
I. BACKGROUND
On October 30, 2017, the Court ordered Plaintiff (1) to pay the $400.00 filing fee or (2)
to submit a motion to proceed in forma pauperis on the AO-239 Form. The deadline for
Plaintiff’s response was November 21, 2017. As of the date of this recommendation, however,
Plaintiff has not responded to the Court’s order or paid the filing fee, nor has he sought an
extension of time to do so.
II. ANALYSIS
Rule 41(b) of the Federal Rules of Civil Procedure permits a court to dismiss an action
sua sponte for failure to prosecute or for failure to comply with the federal rules or any court
order. Larson v. Scott, 157 F.3d 1030, 1031 (5th Cir. 1998). “This authority flows from the
court’s inherent power to control its docket and prevent undue delays in the disposition of
pending cases.” Boudwin v. Graystone Ins. Co., Ltd., 756 F.2d 399, 401 (5th Cir. 1985) (citing
Link v. Wabash R.R. Co., 370 U.S. 626 (1962)).

Plaintiff has been given ample opportunity to respond to the Court’s order. He has
impliedly refused or declined to do so. Therefore, this action should be dismissed without
prejudice for lack of prosecution. See FED. R. CIV. P. 41(b) (an involuntary dismissal “operates
as an adjudication on the merits,” unless otherwise specified).
III. RECOMMENDATION
For the foregoing reasons, it is recommended that this action be DISMISSED
WITHOUT PREJUDICE for want of prosecution.
SIGNED January 2, 2018.

INSTRUCTIONS FOR SERVICE AND
NOTICE OF RIGHT TO APPEAL/OBJECT
A copy of this report and recommendation will be served on all parties in the manner
provided by law. Any party who objects to any part of this report 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 report 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 Services Automobile Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en
banc), modified by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending the time to file
objections from ten to fourteen days).

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