United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
L. HORAN UNITED STATES MAGISTRATE JUDGE.
pro se employment-related action, filed by Plaintiff
Rogelio Salazar-Martinez, has been referred to the
undersigned United States magistrate judge for pretrial
management under 28 U.S.C. § 636(b) and a standing order
of reference from Senior U.S. District Judge A. Joe Fish. The
undersigned issues these findings of fact, conclusions of
law, and recommendation that, for the reasons stated below,
the Court should dismiss this action without prejudice under
Federal Rules of Civil Procedure 41(b).
Plaintiff filed his complaint [Dkt. No. 3] - a single page
listing seven causes of action and no facts attached to which
is a dismissal and notice of rights issued by the Equal
Employment Opportunity Commission (“EEOC”), as
well as other documents associated (or possibly associated)
with an action filed with the EEOC - the Court issued a
questionnaire to determine the timeliness of this action,
which required Plaintiff to file verified responses no later
than December 11, 2017, see Dkt. No. 8, and a notice
of deficiency (“NOD”) requiring that Plaintiff
also file, no later than that date, an amended complaint on a
provided form, see Dkt. No. 7. Both the
questionnaire and the NOD warned Plaintiff that his failure
to timely comply may result in the dismissal of his action
under Federal Rule of Civil Procedure 41(b). See
Dkt. No. 7 at 1; Dkt. No. 8 at 1.
now more one month past that deadline to answer the
questionnaire and comply with the NOD and more than two
months since Plaintiff filed this action, and he has yet to
comply with the Court's orders or otherwise contact the
Standards and Analysis
Federal Rule of Civil Procedure 41(b), “a district
court may dismiss an action sua sponte if the
plaintiff fails to comply with court orders.”
Nottingham v. Warden, Bill Clements Unit, 837 F.3d
438, 440 (5th Cir. 2016) (citing Fed.R.Civ.P. 41(b);
McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir.
1988) (per curiam)). Under the same rule, a district court
also “may sua sponte dismiss an action for
failure to prosecute.” Rosin v. Thaler, 450
Fed.Appx. 383, 383-84 (5th Cir. 2011) (per curiam) (citations
omitted)). That 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
41(b) dismissal may be with or without prejudice. See
Long v. Simmons, 77 F.3d 878, 879-80 (5th Cir. 1996).
Although “[l]esser sanctions such as fines or dismissal
without prejudice are usually appropriate before dismissing
with prejudice, ... a Rule 41(b) dismissal is appropriate
where there is ‘a clear record of delay or contumacious
conduct by the plaintiff and when lesser sanctions would not
serve the best interests of justice.'”
Nottingham, 837 F.3d at 441 (quoting Bryson v.
United States, 553 F.3d 402, 403 (5th Cir. 2008) (per
curiam) (in turn quoting Callip v. Harris Cnty. Child
Welfare Dep't, 757 F.2d 1513, 1521 (5th Cir.
1985))); see also Long, 77 F.3d at 880 (a dismissal
with prejudice is appropriate only if the failure to comply
with the court order was the result of purposeful delay or
contumacious conduct and the imposition of lesser sanctions
would be futile); cf. Nottingham, 837 F.3d at 442
(noting that “lesser sanctions” may
“‘include assessments of fines, costs, or damages
against the plaintiff, conditional dismissal, dismissal
without prejudice, and explicit warnings'” (quoting
Thrasher v. City of Amarillo, 709 F.3d 509, 514 (5th
filing an amended complaint as required by the NOD and by not
submitting verified responses to the questionnaire, both as
ordered by the Court, Plaintiff has prevented this action
from proceeding, and he therefore has failed to prosecute his
lawsuit and obey a court order. A Rule 41(b) dismissal of
this lawsuit without prejudice is warranted under these
circumstances. And the undersigned concludes that lesser
sanctions would be futile. The Court is not required to delay
the disposition of this case until such time as Plaintiff
decides to comply with the Court's orders. Accordingly,
the Court should exercise its inherent power to prevent undue
delays in the disposition of pending case and sua
sponte dismiss this action without prejudice.
extent that Plaintiff brings to the Court claims he raised
with the EEOC, although the recommended dismissal is without
prejudice, because, absent equitable tolling, “this
case cannot be timely refiled once dismissed as more than
ninety days have elapsed since [Plaintiff] received [the]
right-to-sue letter from the EEOC” - dated August 17,
2017 [Dkt. No. 3 at 2-3]; see Jenkins v. City of San
Antonio Fire Dep't, 784 F.3d 263, 267 (5th Cir.
2015) (“[W]here the date of receipt is not known,
courts should apply a presumption that the plaintiff received
the notice in three days.”) - “dismissal of
[this] case even without prejudice will operate as a
dismissal with prejudice, ” Dudley v. Dallas Indep.
Sch. Dist., No. 3:99-cv-2634-BC, 2001 WL 123673, at *3
(N.D. Tex. Jan. 12, 2001) (citations omitted); see Berry
v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992)
(“If a Title VII complaint is timely filed pursuant to
an EEOC right-to-sue letter and is later dismissed, the
timely filing of the complaint does not toll the ninety-day
limitations period.” (citation omitted)).
period for filing an objection to these findings,
conclusions, and recommendation affords Plaintiff an
opportunity to respond to this limitations issue.