United States District Court, N.D. Texas, Dallas Division
Joseph S. Blimline, #18029-078, Plaintiff,
Thirty Unknown Employees of the Securities and Exchange Commission, et al., Defendants.
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
case was referred to the United States magistrate judge for
judicial screening, including findings and a recommended
disposition. For the reasons that follow, this action should
be DISMISSED WITHOUT PREJUDICE for failure
to comply with a court order.
February 13, 2019, the Court ordered Plaintiff Joseph S.
Blimline to respond to its Magistrate Judge's
Questionnaire. Doc. 24. The Court granted his motion to
extend the deadline and, subsequently, in the interest of
justice, sua sponte extended the deadline to May 1,
2019 after he again failed comply. Doc. 29. The Court's
orders advised Blimline that his repeated failure to respond
could result in dismissal. Nevertheless, Blimline has not
responded to the Questionnaire, nor has he sought
further extension of time to do so.
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)).
such dismissal is without prejudice. However, when, as here,
a litigant may be barred by the statute of limitations from
re-asserting his claims, a Rule 41(b) dismissal is tantamount
to a dismissal with prejudice and the court is required to
apply a higher standard of review. See Berry v.
CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992). In
that instance, the court may dismiss for want of prosecution
only when there is a clear record of delay or contumacious
conduct by the plaintiff, and lesser sanctions would not
prompt diligent prosecution or the record shows that the
district court employed lesser sanctions that proved to be
futile. Id. In applying this higher standard, the
court must find “at least one of three aggravating
factors: ‘(1) delay caused by [the] plaintiff himself
and not his attorney; (2) actual prejudice to the defendant;
or (3) delay caused by intentional conduct.'”
Id.; see also Nottingham v. Warden, Bill
Clements Unit, 837 F.3d 438, 441 (5th Cir. 2016) (same).
requisites are met here. This case has been pending for more
than three months and, despite two extensions, Blimline has
failed to respond to the Magistrate Judge's
Questionnaire that seeks elaboration on his claims.
See Eason v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994)
(approving court questionnaires to develop factual basis for
a complaint at initial screening). Since Blimline is
representing himself, the delay caused by his non-compliance
is attributable to him alone. See Berry,
975 F.2d at 1191.
first motion to extend and his subsequent Sworn
Declaration for Recusal of Magistrate Judge clearly
demonstrate that he was aware of his obligation to respond to
the Questionnaire. Doc. 28. Moreover, considering
his failure to respond, no lesser sanction will prompt
diligent prosecution of this case. Thus, the Court should
exercise its discretion to dismiss under Rule 41(b) even if
limitations may prevent further litigation of Blimline's
claims. See Nottingham, 837 F.3d at 441 (holding
court did not abuse its discretion in applying higher
standard of review and dismissing pro se civil
rights action due to plaintiffs intentional noncompliance
with court's questionnaire and orders).
foregoing reasons, this action should be DISMISSED
WITHOUT PREJUDICE for failure to comply with a court
order and for want of prosecution. See Fed. R. Civ.
FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
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. See28 U.S.C.
§ 636(b)(1); Fed.R.Civ.P. 72(b). An objection must
identify the specific finding or recommendation to which
objection is made, state the basis for the objection, and
indicate 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