United States District Court, W.D. Louisiana, Monroe Division
A. DOUGHTY JUDGE.
REPORT AND RECOMMENDATION
L. HAYES UNITED STATES MAGISTRATE JUDGE.
19, 2018, the court afforded plaintiff 30 days to furnish the
Clerk of Court with one (1) copy of the original and amended
complaints, two (2) completed summonses, and one (1)
completed USM-285 form for EACH of the remaining defendants:
Robert Myles, “Officer Beckly, ” and “Cpt.
Crain.” (June 19, 2018, Mem. Order [doc. # 11]).
However, plaintiff failed to do so.
on August 30, the court notified plaintiff that after
September 13, 2018, and in the absence of good cause shown,
it intended to dismiss any remaining defendant for whom he
had not completed and returned to the Clerk of Court
requisite service documents. (Aug. 30, 2018, Notice of Intent
to Dismiss [doc. # 13]). It is now more than 17 days past the
latest deadline, with no response from plaintiff.
Federal Rules of Civil Procedure provide that “[i]f the
plaintiff fails to prosecute or to comply with these rules or
a court order, a defendant may move to dismiss the action or
any claim against it.” Fed.R.Civ.P. 41(b) (in pertinent
part). The Supreme Court has interpreted this rule as
authorizing the district court to dismiss an action sua
sponte, even without a motion by defendant. Link v.
Wabash R.R.Co., 370 U.S. 626, 630-31, 82 S.Ct. 1386,
1388-89 (1962). “The power to invoke this sanction is
necessary in order to prevent undue delays in the disposition
of pending cases and to avoid congestion in the calendars of
the [d]istrict [c]ourts.” McCullough v.
Lynaugh, 835 F.2d 1126, 1127 (5th Cir.1988).
extent that the applicable statute of limitations may bar
plaintiff from re-filing the instant suit, then dismissal at
this juncture effectively will constitute dismissal
“with prejudice, ” - “an extreme sanction
that deprives the litigant of the opportunity to pursue his
claim.” Berry v. CIGNA/RSI-CIGNA, 975 F.2d
1188, 1190 (5th Cir. 1992) (internal quotations
omitted). Dismissal with prejudice for failure to prosecute
or to comply with a court order is warranted only where
“a clear record of delay or contumacious conduct by the
plaintiff exists and a lesser sanction would not better serve
the interests of justice.” See Millan v. USAA
General Indem. Co., 546 F.3d 321, 325 (5th
Cir. 2008) (citations and internal quotation marks omitted).
In addition, the Fifth Circuit generally requires the
presence of 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.
undersigned finds that the requirements for a dismissal with
prejudice are satisfied in this case. As discussed above,
plaintiff has ignored more than one court order. Also, as
plaintiff is proceeding in forma pauperis, it is
unlikely that he enjoys sufficient means to fund an
alternative monetary sanction. Moreover, dismissal with
prejudice may be the least sanction where, as here, there is
every indication that plaintiff no longer wishes to pursue
his cause of action. Finally, plaintiff's unrepentant
flaunting of court orders reflects his own contumaciouness or
“stubborn resistance to authority” which is
personally attributable to him as a litigant unrepresented by
foregoing reasons, IT IS RECOMMENDED that plaintiff's
claims against remaining defendants, Robert Myles,
“Officer Beckly, ” and “Cpt. Crain, ”
be DISMISSED, with prejudice, in accordance with the
provisions of Fed.R.Civ.P. 41(b).
the provisions of 28 U.S.C. §636(b)(1)(C) and FRCP Rule
72(b), the parties have fourteen (14) days
from service of this Report and Recommendation to file
specific, written objections with the Clerk of Court. A party
may respond to another party's objections within
fourteen (14) days after being served with a
copy thereof. A courtesy copy of any objection or response or
request for extension of time shall be furnished to the
District Judge at the time of filing. Timely objections will
be considered by the District Judge before the Judge makes a
PARTY'S FAILURE TO FILE WRITTEN OBJECTIONS TO THE
PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATIONS CONTAINED
IN THIS REPORT WITHIN FOURTEEN (14) DAYS FROM THE DATE OF ITS
SERVICE SHALL BAR AN AGGRIEVED PARTY, EXCEPT ON GROUNDS OF
PLAIN ERROR, FROM ATTACKING ON APPEAL THE UNOBJECTED-TO
PROPOSED FACTUAL FINDINGS AND LEGAL CONCLUSIONS ACCEPTED BY
THE DISTRICT JUDGE.