Opinion
3:04-CV-2381-B.
January 31, 2005
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the District Court in implementation thereof, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type of Case: This is an action brought pursuant to 42 U.S.C. § 1983.
Parties: Plaintiff is an inmate presently confined at the McConnell Unit of the Texas Department of Criminal Justice — Correctional Institution Division in Beeville, Texas. Defendant is Correctional Officer Ron Elerick. The court has not issued process in this case, however, on November 18, and December 16, 2004, the magistrate judge issued an original and a supplemental questionnaire to Plaintiff. As of the date of this recommendation, Plaintiff has not submitted his answers to the supplemental questionnaire.
Statement of the Case: The complaint is not a model of clarity. In answer to the original questionnaire, Plaintiff explained that he is seeking to sue Officer Elerick for filing criminal charges against him in Wichita County, Texas. (Answer to Question 2, 5-6, and Complaint at 4). He requests the following relief: "drop my P5 custody to P2 custody, or drop my sentence." (Complaint at 4).
Findings and Conclusions: Even liberally construing Plaintiff's pro se complaint and his answers to the original questionnaire, it is clear that his pleadings are insufficient to allege a federal claim. Nonetheless, before deciding whether to issue a recommendation of dismissal pursuant to 28 U.S.C. § 1915A and/or 28 U.S.C. § 1915(e), the magistrate judge issued a supplemental questionnaire to afford Plaintiff the opportunity to present the court with sufficient facts to demonstrate the existence of a federal claim. The Fifth Circuit Court of Appeals has approved the use of questionnaires as a proper method to develop the factual basis of a pro se complaint. See Eason v. Thaler, 14 F.3d 8 (5th Cir. 1994) (requiring further development of insufficient factual allegations before dismissal under § 1915 is proper); Watson v. Ault, 525 F.2d 886, 892-93 (5th Cir. 1976) (affirming use of questionnaire as useful and proper means for court to develop factual basis of pro se plaintiff's complaint).
Plaintiff has refused to respond to the supplemental questionnaire filed on December 16, 2004. The last pleading filed in this case is a letter received from Plaintiff on December 15, 2004, which reiterates the allegations raised in the complaint.
Rule 41(b), of the Federal Rules of Civil Procedure, allows a court to dismiss an action sua sponte for failure to prosecute or for failure to comply with the federal rules or any court order. Larson v. Scott, 157 F.3d 1030, 1031 (5th Cir. 1998). "This authority [under Rule 41(b)] 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, 82 S.Ct. 1386 (1962)).
Because Plaintiff has been given ample opportunity to submit his answers to the supplemental magistrate judge's questionnaire, but has failed or refused to do so, this action should be dismissed for want of prosecution.
RECOMMENDATION:
For the foregoing reasons, it is recommended that the complaint be dismissed without prejudice for want of prosecution pursuant to Rule 41(b), Federal Rules of Civil Procedure.
A copy of this recommendation will be mailed to Plaintiff.