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Wilkerson v. Davis

United States District Court, N.D. Texas, Dallas Division

January 19, 2018

SENRICK WILKERSON, #1885146, Petitioner,
LORIE DAVIS, Director TDCJ-CID, Respondent.



         Pursuant 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.

         I. BACKGROUND

         On 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.

         Petitioner 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.[1] 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, 2017).

         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)).

         As 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).


         For the foregoing reasons, it is recommended that this action be DISMISSED WITHOUT PREJUDICE for want of prosecution.[2]


         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), modified by statute, 28 U.S.C. § 636(b)(1) (extending the time to file objections from ten to fourteen days).


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