Castro v. DeJoy

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION

VICTOR CASTRO, § § Plaintiff, § § vs. § SA-23-CV-00294-OLG § LOUIS DEJOY, POSTMASTER § GENERAL, § § Defendant. §

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

To the Honorable United States District Judge Orlando L. Garcia: This Report and Recommendation concerns the above-styled cause of action, which was referred to the undersigned for an order on Plaintiff’s motion to proceed in forma pauperis and for a review of the pleadings pursuant to 28 U.S.C. § 1915(e). The undersigned has authority to enter this recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below, it is recommended that this case be dismissed for want of prosecution. I. Background and Analysis The record reflects that on March 20, 2023, the undersigned granted Plaintiff’s motion to proceed in forma pauperis and ordered Plaintiff’s proposed Complaint to be docketed. However, the undersigned ordered that service be withheld pending further review of the plausibility of Plaintiff’s claims. The undersigned directed Plaintiff to file a more definite statement on or before April 10, 2023, and warned Plaintiff that a failure to do so could result in dismissal for want of prosecution. To date, Plaintiff has not filed the ordered more definite statement. A district court may dismiss an action for failure to prosecute or to comply with any order of the court. McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir.1988) (per curiam); Fed. R. Civ. P. 41(b). In light of Plaintiff’s failure to respond to the Court’s Order to supplement his pleadings and address the specific questions regarding his claims, the Court will recommend that Plaintiff’s claims be dismissed for want of prosecution pursuant to Rule 41(b) of the Federal

Rules of Civil Procedure. II. Conclusion and Recommendation Having considered the record in this case, the undersigned recommends that this case be DISMISSED FOR WANT OF PROSECUTION. III. Instructions for Service and Notice of Right to Object/Appeal The United States District Clerk shall serve a copy of this report and recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a “filing user” with the clerk of court, or (2) by mailing a copy to those not registered by certified mail, return receipt requested. Written objections to this report and recommendation must be

filed within fourteen (14) days after being served with a copy of the same, unless this time period is modified by the district court. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The party shall file the objections with the Clerk of Court and serve the objections on all other parties. A party filing objections must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusive or general objections. A party’s failure to file written objections to the proposed findings, conclusions and recommendations contained in this report shall bar the party from a de novo determination by the district court. Thomas v. Arn, 474 U.S. 140, 149–52 (1985); Acuña v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to file timely written objections to the proposed findings, conclusions and recommendations contained in this report and recommendation shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the un-objected-to proposed factual findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc). SIGNED this 25th day of April, 2023.

ELIZAB . BETSY") CHESTNEY UNITED STATES MAGISTRATE JUDGE