United States District Court, N.D. Texas, Dallas Division
JOE M. GOMEZ, Plaintiff,
RENZENBERGER INC., Defendant.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
L.HORAN UNITED STATES MAGISTRATE JUDGE
pro se employment discrimination action 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 United States
District Judge A. Joe Fish. The undersigned enters these
findings of fact, conclusions of law, and recommendation
that, for the reasons and to the extent stated below, the
Court should dismiss this action without prejudice under
Federal Rule of Civil Procedure 41(b).
Joe M. Gomez filed this action on January 31, 2018.
See Dkt. No. 1. On February 2, 2018, the Court
granted his motion for leave to proceed in forma
pauperis (“IFP”) and, to facilitate its
obligation to screen actions filed IFP, issued a screening
questionnaire. See Dkt. Nos. 6 & 7; see
also 28 U.S.C. § 1915(e)(2)(B). Gomez's
verified responses to that questionnaire were to have been
received by the Court no later than March 5, 2018, and Gomez
was warned that the “[f]ailure to provide complete
answers to all questions may result in the dismissal of this
action under Federal Rule of Civil Procedure 41(b) for
failure to prosecute and/or for failure to obey an order of
the Court.” Dkt. No. 7 at 1.
now more than one month past the deadline for Gomez to
respond to the screening questionnaire - and it is more than
two months since he filed this action - and Gomez has yet to
comply with the Court's order 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 (1962)); see also Lopez v. Ark. Cty. Indep. Sch.
Dist., 570 F.2d 541, 544 (5th Cir. 1978)
(“Although [Rule 41(b)] is phrased in terms of
dismissal on the motion of the defendant, it is clear that
the power is inherent in the court and may be exercised sua
sponte whenever necessary to ‘achieve the orderly and
expeditious disposition of cases.'” (quoting
Link, 370 U.S. at 631)).
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 Cty. 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
responding to the screening questionnaire, as ordered by the
Court, and thereby preventing this action from proceeding,
Gomez has failed to prosecute his lawsuit and also has failed
to 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 Gomez decides to comply with the
Court's order. The Court should therefore exercise its
inherent power to prevent undue delays in the disposition of
pending case and sua sponte dismiss this action
the extent that Gomez asserts Title VII or similar claims,
given that the EEOC right-to-sue letter attached to his
complaint was issued on November 1, 2017, see Dkt.
No. 3 at 2, “this case cannot be timely refiled once
dismissed as more than ninety days have elapsed since [Gomez]
received [the] right-to-sue letter from the EEOC. Thus,
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
Court should therefore condition its dismissal without
prejudice under Rule 41(b) to allow Gomez leave to file a
motion to reopen this action on or before 30 days from the
date of any order accepting these findings, conclusions, and
recommendation. Cf. Monell v. Berryhill, No.
4:17-cv-22-O-BP, 2017 WL 3098584, at *2 (N.D. Tex. June 30,
2017) (adopting the same procedure where a Social Security
appeal was dismissed without prejudice under Rule 41(b)),
rec. accepted, 2017 WL 3086326 (N.D. Tex. July 20,