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.
Michael Keith Brown brings this pro se action
appearing to allege that his civil rights have been violated.
See Dkt. No. 3. His 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 United States District Judge David C.
6, 2019, the Court granted Brown leave to proceed in
forma pauperis, see Dkt. Nos. 5 & 6, and
issued a Notice of Deficiency and Order Regarding Complaint,
notifying him “of certain deficiencies in the complaint
as filed that must be remedied no later than July 8, 2019 to
allow this action to proceed, ” Dkt. No. 7 (further
warning him “that failure to comply with this order by
filing an amended complaint will result in a recommendation
that this action be dismissed” (citing Fed.R.Civ.P.
41(b); emphasis omitted)) (the “NOD”). Granting
Brown's motion, the Court extended the deadline to comply
with the NOD to August 9, 2019. See Dkt. Nos. 8
now more than one month past the extended deadline to comply
with the Court's order, and Brown has failed to file an
amended complaint. The undersigned therefore enters these
findings of fact, conclusions of law, and recommendation
that, for the reasons explained below, the Court should
dismiss this action without prejudice under Federal Rules of
Civil Procedure 41(b).
Standards and Analysis
41(b) “authorizes the district court to dismiss an
action sua sponte for failure to prosecute or comply
with a court order.” Griggs v. S.G.E. Mgmt.,
L.L.C., 905 F.3d 835, 844 (5th Cir. 2018) (citing
McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir.
1988) (per curiam)); accord Nottingham v. Warden, Bill
Clements Unit, 837 F.3d 438, 440 (5th Cir. 2016)
(failure to comply with a court order); Rosin v.
Thaler, 450 Fed.Appx. 383, 383-84 (5th Cir. 2011) (per
curiam) (failure to prosecute).
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. Cnty. 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)).
Court's authority under Rule 41(b) is not diluted by a
party proceeding pro se, as “[t]he right of
self-representation does not exempt a party from compliance
with relevant rules of procedural and substantive law.”
Wright v. LBA Hospitality, 754 Fed.Appx. 298, 300
(5th Cir. 2019) (per curiam) (quoting Hulsey v.
Texas, 929 F.2d 168, 171 (5th Cir. 1991) (quoting, in
turn, Birl v. Estelle, 660 F.2d 592, 593 (5th Cir.
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
a dismissal is without prejudice but ‘the applicable
statute of limitations probably bars future litigation,
'” that dismissal operates as - i.e., it is
reviewed as - “a dismissal with prejudice.”
Griggs, 905 F.3d at 844 (quoting
Nottingham, 837 F.3d at 441); see, e.g.,
Wright, 754 Fed.Appx. at 300 (affirming dismissal under
Rule 41(b) - potentially effectively with prejudice - where
“[t]he district court had warned Wright of the
consequences and ‘allowed [her] a second chance at
obtaining service'” but she “disregarded that
clear and reasonable order”).
filing an amended complaint as required by the NOD, Brown has
prevented this action from proceeding. And, by so doing, he
has failed to prosecute his lawsuit and also failed to obey a
court order. A Rule 41(b) dismissal of this lawsuit without
prejudice is warranted under these circumstances. 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 Brown decides to comply with the
Court's directives. The Court should therefore exercise
its inherent power to prevent undue delays in the disposition
of pending cases and sua sponte dismiss this action