United States District Court, E.D. Louisiana
R. WAYNE JOHNSON
LYLE CAYCE, ET AL.
ORDER AND REASONS
the Court are the Magistrate Judge's Report and
Recommendation to dismiss plaintiff R. Wayne Johnson's
suit pursuant to 42 U.S.C. § 1983 (Rec. Doc. 5),
plaintiff's objections to the Report and Recommendation
(Rec. Doc. 6), and plaintiff's amendment/supplement (Rec.
Doc. 7). For the reasons discussed below, IT IS
ORDERED that plaintiff's objections are
OVERRULED and the Report and Recommendation
are ADOPTED as the Court's opinion.
BACKGROUND AND PROCEDURAL HISTORY
16, 2018, plaintiff, a prisoner incarcerated in the Texas
Department of Criminal Justice, filed suit pursuant to 42
U.S.C. § 1983 alleging that he has been the victim of
mail crimes, obstruction of justice, and retaliation.
See Rec. Doc. 1. On July 23, 2018, the Clerk of
Court mailed plaintiff a Notice of Deficient Filing for
failure to submit a filing fee and to submit the approved
forms by this Court. See Rec. Doc. 2. In this
notice, the Court required plaintiff to either submit the
full filing fee or, alternatively, complete a
straight-forward application that asks permission to proceed
as a pauper. See id. In addition, the notice
required plaintiff to submit the complaint on the approved
court forms. See id. The Notice of Deficient Filing,
along with the requested documents, were mailed to Plaintiff
at the address provided for in the complaint. See
id. However, Plaintiff did not directly respond to the
notice. Instead, on August 13, 2018, Plaintiff filed a motion
for recusal. See Rec. Doc. 3. While plaintiff did
not file a direct response to the Notice of Deficient Filing
nor submit any of the requested documents, plaintiff did
state that the application to proceed as a pauper violated
the 1974 Privacy Act. See Id. at 2. Subsequently,
this Court denied plaintiff's motion for recusal finding
that the motion did not provide any grounds for recusal and
that the complaint was deficient. See Rec. Doc. 4.
August 29, 2018, Magistrate Judge Joseph Wilkinson, Jr.
entered his findings and recommendation. See Rec.
Doc. 5. Although the Magistrate Judge recognized
plaintiff's failure to comply with court orders as
grounds for dismissal, the judge also provided Plaintiff an
additional opportunity to respond to the Clerk's notice
of deficiency. See Id. at 3. Nevertheless, the judge
recommended that plaintiff's suit be dismissed if
plaintiff did not object to these findings or provide the
necessary documentation. On September 4, 2018, plaintiff
filed his objections, and then on September 10, 2018,
plaintiff filed an amendment/supplement. See Rec.
Doc. Nos. 6, 7. Both documents repeat statements made in
plaintiff's complaint, alleging that the court lacks
jurisdiction and that ordered forms violate the Privacy Act
of 1974. See id.
to Federal Rules of Civil Procedure Rule 41(b), the court may
dismiss an action for failure to prosecute or comply with any
court order. See Hulsey v. Texas, 929 F.2d 168, 171
(5th Cir. 1991). Such dismissal lies within the discretion of
the court, and is only reviewed for abuse of discretion.
See Marshall v. Batts, 707 Fed.Appx. 286, 287 (5th
Cir. 2017); Larson v. Scott, 157 F.3d 1030, 1032
(5th Cir. 1998). According to the Fifth Circuit, a dismissal
with prejudice is an extreme sanction that should be used
with caution. See Gist v. Lugo, 165 F.R.D. 474, 477
(E.D. Tex. 1996). To dismiss a suit with prejudice for
failure to prosecute, the Fifth Circuit requires a record of
“delay or contumacious conduct by the plaintiff”
and that a lesser sanction would or has been futile. See
id. In addition, one of three aggravating factors is
needed, such as the delay is caused by the plaintiff himself
and not the attorney; the delay results from intentional
conduct; or there is actual prejudice to the defendant.
Gist, the court held that the district court was
within its discretion to dismiss the plaintiff's suit.
See Id. At 478. The court found that not only did
the plaintiff ignore multiple court orders and fail to comply
with certain disclosure requirements, but the plaintiff was
warned of the possibility of dismissal of his case. Due to
the plaintiff's failure and refusal to comply, the court
concluded that the plaintiff was willfully disobedient and
that it was through his fault alonethat caused the delay.
See Id. at 477-78.
in Larson, the court held that the magistrate judge
did not abuse its discretion in dismissing the case. See
Larson, 157 F.3d at 1032. In Larson, the
pro se appellant was given repeated warnings to file
an affidavit and certified copy of his inmate trust fund
account statement. See id. Even after informing
Larson of the consequences for failure to comply and giving
him more than four months to produce the documents, Larson
ignored the warnings. See id. Instead, Larson filed
an objection and asked the district court to rescind the
order. See Id. at 1031. Nevertheless, the court
affirmed the dismissal for want of prosecution.
review, plaintiff's objections should be denied because
plaintiff has failed to comply with the orders of the court.
Plaintiff, like the litigants in Gist and
Larson, has failed to answer valid non-complex court
orders and produce necessary documents to prosecute the case.
In addition, plaintiff has been given multiple warnings of
such deficiency and told of the consequences. Like the
plaintiff in Gist, this Court finds that in addition
to the record of delay due to plaintiff's conduct,
plaintiff is the exclusive cause for such delay. This Court
has given plaintiff multiple opportunities to comply with the
rules of court. However, plaintiff has refused to comply
with those rules and instead proceeded to make frivolous
objections ignoring the rules and court orders. Therefore,
this Court finds that a dismissal with prejudice is proper
given the circumstances of the case.
plaintiff is pro se, courts have repeatedly held
that pro se litigants must still comply with the
rules of procedure. See, e.g., Thorn v. McGary, 684
Fed.Appx. 430, 433 (5th Cir. 2017); Jones v. FJC Sec.
Servs., 612 Fed.Appx. 201, 203 (5th Cir. 2015);
Houston v. Queen, 606 Fed.Appx. 725, 730 (5th Cir.
2015). Even though pro se parties are given
leniency, the right of self-representation does not exempt
this plaintiff from following clear procedural and
substantive laws. See Thorn, 684 Fed.Appx. at 433.
contentions of a right to counsel in this civil action and
his objection to jurisdiction lack factual or legal support.
Orleans, Louisiana, this ...