United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
HARRIS TOLIVER UNITED STATES MAGISTRATE JUDGE.
to 28 U.S.C. § 636(b) and Special Order 3, this
habeas case was referred to the United States magistrate
judge. For the reasons that follow, this action should be
DISMISSED WITHOUT PREJUDICE
for want of prosecution.
December 20, 2017, it came to the Court's attention that
Petitioner, a state prisoner proceeding pro se, had
been released from the Texas Department of Criminal Justice,
but had not informed the Court of his current address. The
Notice and Instructions to Pro Se Party, which the
Clerk of the Court mailed to Petitioner when this case was
filed, advised him of the requirement to keep the Court
informed of his change of address or risk dismissal. Doc.
2. To date, he has failed to do so.
is no stranger to the federal courts, having filed 50 cases
over the last six years challenging his convictions as he
again does in this case. Doc. 3. Consequently, he has
been barred from filing new civil actions under the
three-strikes provision of 28 U.S.C. § 1915(g), and
sanctioned for repeatedly bringing frivolous or malicious
civil lawsuits challenging his convictions. See,
e.g., Wilkerson v. Watkins, No.
3:13-CV-1326-M-BF, 2013 WL 6620861, at *1 and 4 (N.D. Tex.
Dec. 16, 2013) (collecting prior cases, imposing monetary
sanction, and barring Plaintiff “from filing any other
actions, motions, or pleadings of any kind challenging his
conviction without first obtaining the permission of a
district judge or magistrate judge.”); Wilkerson v.
State Prosecutor Brooke Grona-Robb, No.
3:15-CV-2162-G-BH, 2016 WL 865660, at *1 (N.D. Tex.
Mar. 7, 2016) (expanding sanctions and filing
restrictions to include removed cases). Petitioner has also
been warned that he will be subject to additional sanctions
if he files another application for writ of habeas corpus or
federal civil rights claim challenging his underlying
criminal convictions. Wilkerson v. Stephens, No.
3:14-CV-2349-G-BN, 2014 WL 4412474 (N.D. Tex. Sept. 8, 2014);
In re Wilkerson, No. 17-11007 (5th Cir. Nov. 22,
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)).
previously stated, Petitioner has failed to keep the Court
apprised of his current address as required by the Notice
and Instructions to Pro Se Party mailed to him when this
case was filed. The Court is not required to delay
disposition in this case until such time as Petitioner
provides a current address. Thus, 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).
foregoing reasons, it is recommended that this action be
DISMISSED WITHOUT PREJUDICE for want of
FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
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),
modified by statute, 28 U.S.C. § 636(b)(1)
(extending the time to file objections from ten to fourteen