United States District Court, S.D. Texas, McAllen Division
REPORT AND RECOMMENDATION
E. Ormsby United States Magistrate Judge.
Douglas Lee Walker, a state prisoner proceeding pro se,
initiated this action seeking to file a civil rights
complaint pursuant to 42 U.S.C. § 1983. (Docket No. 1.)
It appeared that Plaintiff wished to assert civil rights
claims against individuals working in the Segovia Unit of the
Texas Department of Criminal Justice. Because Plaintiff had
not taken any action to serve the defendants with process,
the Court informed Plaintiff of his obligations to do so.
(See Docket Nos. 1, 3.) However, the order was
returned as undeliverable, and Plaintiff has taken no further
action in this case.
discussed below, Plaintiff has failed to prosecute this
action, including failing to respond to a court order and
failing to keep the Clerk advised of his current address.
Accordingly, the undersigned recommends that this action be
16, 2016, Plaintiff initiated this civil rights action
pursuant to 42 U.S.C. § 1983. (Docket No. 1.) Plaintiff
alleges that several staff members at the Segovia Unit
"violated his rights under the constitution of the 14th
Amendment" by denying him a razor based on his religious
beliefs. (Id. at 6-10.) Specifically, he argues that
staff at the jail were denying him a razor to trim his beard
and armpits based on a policy that razors are only for
"shaving facial hair." (Id. at 7.) As for
relief, Plaintiff requests "compensatory and punitive
damages" in a total amount of $500, 000. (Id.
at 9.) Other than filing his original Complaint, Plaintiff
took no further action in this case.
undersigned entered an order alerting Plaintiff to his
obligation to serve the defendants with process. (Docket No.
3, at 2.) As he is proceeding pro se and in forma pauperis,
the order explained to Plaintiff what the federal rules
required of him, including presenting "summons to the
Clerk for each defendant" and requesting service to be
made by a United States deputy marshal (if Plaintiff was
unable to complete service by other means). (Id. at
was also informed that he must "keep the Clerk advised
in writing of his current address and to file promptly a
change of address when necessary." (Id. at 3.)
Plaintiff was further warned that "[f]ailure to do
so may be interpreted as failure to prosecute and may result
in the dismissal of this case." (Id.
(emphasis in original).) This order was returned as
"undeliverable." (Docket No. 4.) Plaintiff has
taken no further action in this case, nor has he had any
contact with the Court since the Court's order was
returned as undeliverable.
claims are subject to dismissal for failure to prosecute.
Rule 41(b) provides that an action may be involuntarily
dismissed where a party "fails to prosecute or to comply
with these rules or a court order." Fed.R.Civ.P. 41(b).
Such a dismissal may be made upon motion by the opposing
party or on the court's own motion. See McCullough v.
Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988). While a
court should be "appropriately lenient" with a
party who is proceeding pro se, the '"right of
self-representation does not exempt a party from compliance
with relevant rules of procedural and substantive
law.'" Hulsey v. Texas, 929 F.2d 168, 171
(5th Cir. 1991) (quoting Birl v. Estelle, 660 F.2d
592, 593 (5th Cir. 1981)).
has failed to comply with the relevant rules and to prosecute
this action in at least two ways. First, Plaintiff failed to
respond to the Court's order regarding his obligations
under the federal rules to effectuate service of process. In
filing this civil rights action pro se, Plaintiff sought (and
was granted) the privilege of proceeding in forma pauperis.
(Docket No. 2.) Although informed of the steps required to
effect service of process, Plaintiff failed to take any
action to serve the defendants and has otherwise failed to
take any action to move his case forward.
Movant failed to keep the Clerk advised of his current
address. As a general rule, "litigants, including
prisoners, 'bear the burden of filing notice of a change
of address in such a way that will bring the attention of the
court to the address change.'" Snyder v.
Nolen, 380 F.3d 279, 285 (7th Cir. 2004) (quoting
Theede v. U.S. Dep't of Labor, 172 F.3d 1262,
1267 (10th Cir. 1999)). This requirement is memorialized in
the Southern District of Texas Local Rules, which provide
that "[a] lawyer or pro se litigant is responsible for
keeping the clerk advised in writing of the current
address." LR 83.4.
has failed to provide an updated address to the Clerk as
required by Local Rule 83.4, despite warnings from the Court
that failure to do so may result in dismissal of his claims
for want of prosecution. (Docket No. 3, at 3.) As described
above, the last court document sent to Plaintiff was returned
as undeliverable. (Docket No. 4.)
both reasons, Plaintiff has failed to prosecute this action.
Because Plaintiff failed to provide an updated address in
compliance with Local Rule 83.4 and did not respond to the
Court's order regarding his obligations to effectuate
service of process, this case should be dismissed for failure
to prosecute. See Lewis v. Hardy, 248 Fed.Appx. 589,
593 n.1 (5th Cir. 2007) (stating that "the failure of a
pro se litigant to notify the district court of an address
change may be considered by the district court as an
additional cause for dismissal for failure to
prosecute"); Carey v. King, 856 F.2d 1439, 1441
(9th Cir. 1988) (affirming dismissal for failure to comply
with local rule requiring pro se litigants to keep court
apprised of their correct address); Day v. Cockrell,
No. 3:01-cv-1325-P, 2002 WL 31757777, at *1 (N.D. Tex. Nov.
21, 2002) (dismissing § 2254 habeas petition where
petitioner failed to notify court of his change of address
and orders were returned to the court as undeliverable). No.
less drastic sanction is available here, given that the last
court document was returned as undeliverable and the Court
thus cannot communicate with Plaintiff See
Carey, 856 F.2d at 1441 (dismissal without prejudice was
the least drastic sanction where any attempt to provide
further notice would be "a futile gesture" given
pro se litigant's failure to provide a change of