United States District Court, S.D. Texas, McAllen Division
JAMES K. CHAMBERS Plaintiff,
J. NABAREZ et al, Defendants.
REPORT AND RECOMMENDATION
SCOTT HACKER JUDGE.
James K. Chambers, filed a motion to proceed in forma
pauperis ("IFP") and a complaint alleging a
violation of his civil rights under 42 U.S.C. §1983.
(Dkt. No. 1). This case was referred to the undersigned
magistrate judge for report and recommendation pursuant to 28
U.S.C. § 636(b).
January 9, 2019, the undersigned ordered Plaintiff to pay his
full filing fee within 30 days of receipt of the order. (Dkt.
No. 28 at 3). Plaintiff was advised that failure to pay the
filing fee may result in dismissal of this action.
(Id.). As of the date of this Report and
Recommendation, Plaintiff has not paid his filing fee.
careful review of the record and relevant law, the
undersigned recommends that Plaintiffs § 1983 action
(Dkt. No. 1) be DISMISSED without prejudice
for want of prosecution. It is further recommended that this
case be closed.
BACKGROUND AND APPLICABLE LAW
proceeds pro se. At the time Plaintiff filed his
complaint, he was in the custody of the Texas Department of
Criminal Justice. (Dkt. No. 1 at 1). Plaintiff has since been
released, as indicated by his March 18, 2016 letter to the
Court providing an updated address. (Dkt. No. 27). As
explained in the Court's previous order, Plaintiff's
release from prison meant that he was no longer eligible to
pay as a prisoner would, with installment payments withdrawn
from his inmate trust account. (Dkt. No. 28). The full filing
fee would have to be paid before his case may proceed.
See 28 U.S.C. §1915(b)(1); Mendiola v.
Cameron Cty. Dist., Attorney's Office, No. CV
B-16-7, 2016 WL 7852527 (S.D. Tex. Dec. 6, 2016), report
and recommendation adopted, No. CV B-16-007, 2017 WL
238905 (S.D. Tex. Jan. 18, 2017).
Rule 41 of the Federal Rules of Civil Procedure, a district
court possesses the authority to dismiss an action for
failure to prosecute. McCullough v. Lynaugh, 835
F.2d 1126, 1127 (citing Link v. Wabash R.R. Co., 370
U.S. 626, 630-31 (1962)); see Fed. R. Civ. P. 41(b)
(discussing involuntary dismissal of actions). This authority
is derived from a court's inherent power to control its
docket, prevent undue delays in the disposition of pending
cases, and avoid congested court calendars. Link,
370 U.S. at 629-31.
undersigned finds that Plaintiffs action should be dismissed
without prejudice for the following reasons. Plaintiff last
communicated with Court on March 18, 2016, providing an
address after his release from prison. (Dkt. No. 27). The
Court's previous order, advising Plaintiff that he must
pay the full filing fee within 30 days, was issued on January
9, 2019 and was sent by certified mail to Plaintiff. (Dkt.
No. 28; Dkt. Data Entry, dated Jan. 9, 2019). The United
States Postal Service tracking function reports that the
certified letter was delivered at 11:30 a.m., on January 16,
the date of this Report and Recommendation, Plaintiff has not
paid his filing fee. Plaintiffs failure to comply with the
Court's order and failure to pay the filing fee provides
an adequate basis for dismissal without prejudice. See,
-e.g., Larson v. Scott, 157 F.3d 1030, 1031-31 (5 th
Cir. 1998) (affirming dismissal without prejudice of
prisoner's action for want of prosecution).
careful review of the record and applicable law, the
undersigned recommends that Plaintiffs § 1983 action be
DISMISSED without prejudice for want of
prosecution. It is further recommended that the case be
to the Parties
14 days after being served a copy of this report, a party may
serve and file specific, written objections to the proposed
recommendations. 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P.
72(b). Failure to file written objections within 14 days
after service shall bar an aggrieved party from de novo
review by the District Court on an issue covered in this
report and from appellate review of ...