IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION OSCAR QUIROZ, § Dall. Cnty Jail Bookin No. 24008689, § § Plaintiff, § § V. § No. 3:24-cv-2324-K-BN § NFN RADAS, § § Defendant. § FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE Oscar Quiroz, an inmate at the Dallas County jail, submitted a filing pro se that has been construed as a civil rights complaint. See Dkt. No. 3. United States District Judge Ed Kinkeade referred this action to the undersigned United States magistrate judge for pretrial management under 28 U.S.C. § 636(b) and a standing order of reference. And the undersigned entered a Notice of Deficiency and Order (the “NOD”) on September 25, 2024, explaining that Quiroz’s complaint as filed was deficient. Dkt. No. 4 at 1. And the NOD noted that Quiroz failed to pay the filing fee or move for leave to proceed in forma pauperis (“IFP”). Id. So the Court provided Quiroz a form civil rights complaint – prisoner ordered him to “complete, date and sign, and return [it] to the Court by October 28, 2024.” Id. at 2-3. And the Court also provided a form application to proceed IFP – prisoner and directed Quiroz “to either pay the full filing fee or file a proper IFP motion supported by a completed and verified [certificate of inmate trust account (“CTA”)] by October 28, 2024.” Id. at 3. The Court warned Quiroz that failure to follow its direction would “result in a recommendation that the complaint be dismissed under Federal Rule of Civil Procedure 41(b).” Id. On November 1, 2024, Quiroz filed additional pages that have been construed
as attachments to his complaint. See Dkt. No. 5. Those pages were not on the form provided by the Court and did not resolve the deficiencies in the complaint. Id. And Quiroz filed an IFP motion on the same day, but he submitted it with a blank CTA. See Dkt. No. 6. Considering this procedural record, the undersigned enters these findings of fact, conclusions of law, and recommendation that the Court should dismiss this action without prejudice under Federal Rule of Civil Procedure 41(b).
Legal Standards Rule 41(b) “authorizes the district court to dismiss an action sua sponte for failure to prosecute or comply with [a Federal Rule of Civil Procedure or] 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 F. App’x 383, 383-84 (5th Cir. 2011) (per curiam) (failure to prosecute); see also Campbell v. Wilkinson, 988 F.3d 798, 800-01 (5th Cir. 2021) (holding that the text of Rule 41(b) does not extend to a failure to comply with a court’s local rule insofar as that violation does not also qualify as a failure to prosecute (discussing Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188 (5th Cir. 1992))). This 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)); Campbell, 988 F.3d at 800 (“It is well established that Rule 41(b) permits dismissal not only on motion of the defendant, but also on the court’s own motion.” (citing Morris v. Ocean Sys., Inc., 730 F.2d 248,
251 (5th Cir. 1984) (citing, in turn, Link, 370 U.S. at 631))). And the 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 F. App’x 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.
Nov. 1981))). A Rule 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); Haynes v. Turner Bass & Assocs., No. 20-40787, 2022 WL 2383855, at *1 (5th Cir. July 1, 2022) (per curiam) (“A dismissal with prejudice is improper unless the case history evidences both (1) a clear record of delay or contumacious conduct by the plaintiff, and (2) that a lesser sanction would not better serve the best interests of justice. A petitioner’s delay meriting a Rule 41(b) dismissal with prejudice must be longer than just a few months; instead, the delay must be
characterized by significant periods of total inactivity. A party’s negligence does not make conduct contumacious; rather, it is the stubborn resistance to authority which justifies a dismissal with prejudice.” (cleaned up)); 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
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IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION OSCAR QUIROZ, § Dall. Cnty Jail Bookin No. 24008689, § § Plaintiff, § § V. § No. 3:24-cv-2324-K-BN § NFN RADAS, § § Defendant. § FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE Oscar Quiroz, an inmate at the Dallas County jail, submitted a filing pro se that has been construed as a civil rights complaint. See Dkt. No. 3. United States District Judge Ed Kinkeade referred this action to the undersigned United States magistrate judge for pretrial management under 28 U.S.C. § 636(b) and a standing order of reference. And the undersigned entered a Notice of Deficiency and Order (the “NOD”) on September 25, 2024, explaining that Quiroz’s complaint as filed was deficient. Dkt. No. 4 at 1. And the NOD noted that Quiroz failed to pay the filing fee or move for leave to proceed in forma pauperis (“IFP”). Id. So the Court provided Quiroz a form civil rights complaint – prisoner ordered him to “complete, date and sign, and return [it] to the Court by October 28, 2024.” Id. at 2-3. And the Court also provided a form application to proceed IFP – prisoner and directed Quiroz “to either pay the full filing fee or file a proper IFP motion supported by a completed and verified [certificate of inmate trust account (“CTA”)] by October 28, 2024.” Id. at 3. The Court warned Quiroz that failure to follow its direction would “result in a recommendation that the complaint be dismissed under Federal Rule of Civil Procedure 41(b).” Id. On November 1, 2024, Quiroz filed additional pages that have been construed
as attachments to his complaint. See Dkt. No. 5. Those pages were not on the form provided by the Court and did not resolve the deficiencies in the complaint. Id. And Quiroz filed an IFP motion on the same day, but he submitted it with a blank CTA. See Dkt. No. 6. Considering this procedural record, the undersigned enters these findings of fact, conclusions of law, and recommendation that the Court should dismiss this action without prejudice under Federal Rule of Civil Procedure 41(b).
Legal Standards Rule 41(b) “authorizes the district court to dismiss an action sua sponte for failure to prosecute or comply with [a Federal Rule of Civil Procedure or] 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 F. App’x 383, 383-84 (5th Cir. 2011) (per curiam) (failure to prosecute); see also Campbell v. Wilkinson, 988 F.3d 798, 800-01 (5th Cir. 2021) (holding that the text of Rule 41(b) does not extend to a failure to comply with a court’s local rule insofar as that violation does not also qualify as a failure to prosecute (discussing Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188 (5th Cir. 1992))). This 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)); Campbell, 988 F.3d at 800 (“It is well established that Rule 41(b) permits dismissal not only on motion of the defendant, but also on the court’s own motion.” (citing Morris v. Ocean Sys., Inc., 730 F.2d 248,
251 (5th Cir. 1984) (citing, in turn, Link, 370 U.S. at 631))). And the 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 F. App’x 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.
Nov. 1981))). A Rule 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); Haynes v. Turner Bass & Assocs., No. 20-40787, 2022 WL 2383855, at *1 (5th Cir. July 1, 2022) (per curiam) (“A dismissal with prejudice is improper unless the case history evidences both (1) a clear record of delay or contumacious conduct by the plaintiff, and (2) that a lesser sanction would not better serve the best interests of justice. A petitioner’s delay meriting a Rule 41(b) dismissal with prejudice must be longer than just a few months; instead, the delay must be
characterized by significant periods of total inactivity. A party’s negligence does not make conduct contumacious; rather, it is the stubborn resistance to authority which justifies a dismissal with prejudice.” (cleaned up)); 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 Cir. 2013))).
“When 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 F. App’x 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”). Analysis By not complying with the NOD, Quiroz has prevented this action from
proceeding. A Rule 41(b) dismissal of this lawsuit without prejudice is therefore warranted under these circumstances. Because the undersigned concludes that lesser sanctions would be futile, as the Court is not required to delay the disposition of this case until such time as Quiroz decides to obey the Court’s order and submit a proper IFP motion or complaint form, the Court should exercise its inherent power to prevent undue delays in the disposition of pending cases and sua sponte dismiss this action without prejudice
under Rule 41(b). And, while it is not apparent based on the record here that dismissal of this lawsuit without prejudice at this time would effectively be a dismissal with prejudice, insofar as the recommended dismissal may somehow prejudice Quiroz, these findings, conclusions, and recommendation afford notice and the opportunity to file objections (as further explained below) to explain why this case should not be dismissed for the
reasons set out above. See Carver v. Atwood, 18 F.4th 494, 498 (5th Cir. 2021) (“The broad rule is that ‘a district court may dismiss a claim on its own motion as long as the procedure employed is fair.’ More specifically, ‘fairness in this context requires both notice of the court’s intention and an opportunity to respond’ before dismissing sua sponte with prejudice.” (citations omitted)). Recommendation The Court should dismiss this action without prejudice under Federal Rule of Civil Procedure 41(b). A copy of these findings, conclusions, and recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of these findings, conclusions, and recommendation must file specific written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. □□□□ P. 72(b). In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge’s findings, conclusions, and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Servs. Auto. Assn, 79 F.3d 1415, 1417 (5th Cir. 1996). DATED: December 4, 2024
DAVIDL.HORAN UNITED STATES MAGISTRATE JUDGE
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