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Hill v. Simon

United States District Court, Fifth Circuit

December 26, 2013

CURTIS RENA HILL, #296024 Plaintiff,
v.
CAPTAIN SIMON, Defendant.

FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

RENEE HARRIS TOLIVER, Magistrate Judge.

Plaintiff, a Tarrant county inmate, sought to file a pro se complaint against Captain Simon. For the reasons that follow, this action should be dismissed for want of prosecution.

I. BACKGROUND

In November 2013, In light of Plaintiff's pro se status, the Court liberally construed the allegations in his motion to amend to raise new civil rights claims under 42 U.S.C. ยง 1983, which the Court ordered severed and filed in this action. See Hill v. Simon, et al., No. 3:13-CV-2713-K-BK (N.D. Tex. Nov. 22, 2013) (denying motion to amend as untimely because Plaintiff had voluntarily moved to dismiss the case, and severing motion to amend which sought to raise new claims). Then on November 25, 2013, the Court issued a deficiency order, requiring a civil rights complaint on the court-approved form, and a motion to proceed in forma pauperis or the $400 filing fee. The deadline for Plaintiff to comply was December 23, 2013. However, on December 11 and 12, 2013, all orders and instructions were returned to the Court as "ATTEMPTED NOT KNOWN" and "RETURN TO SENDER NOT IN TARRANT COUNTY JAIL." (Doc. 6, 7). As of the date of this recommendation Plaintiff has failed to apprise the Court of his new address.

II. ANALYSIS

Rule 41(b) of the Federal Rules of Civil Procedure allows 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 deficiency order and notify the Court of his new address. 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).[1]

III. RECOMMENDATION

For the foregoing reasons, it is recommended that this action be DISMISSED without ...


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