Case Information
*1 IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS DALLAS DIVISION DAVID DANIEL, SR., § § Plaintiff, § § V. § No. 3:19-cv-1740-S-BN § HOYA OPTICAL, § § Defendant. § FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Plaintiff David Daniel, Sr. filed a pro se complaint against his former employer alleging that he was terminated in retaliation. See Dkt. No. 1. His action was referred to the undersigned United States magistrate judge for pretrial management under 28 U.S.C. § 636(b) and a standing order of reference from the presiding United States district judge.
On July 23, 2019, the Court granted Daniel leave to proceed in forma pauperis , see Dkt. Nos. 4 & 6, and issued a screening questionnaire to allow Daniel to better explain the facts supporting his claims and to determine whether this action is time- barred and whether venue is proper, see Dkt. No. 7. His verified response to the questionnaire was to be filed by August 22, 2019. See id. at 1 (warning him that “[f]ailure to provide complete answers to all questions and to verify the answers may result in the dismissal of this action under Federal Rule of Civil Procedure 41(b) for failure to prosecute and obey an order of the Court”).
It is now more than one month past the deadline to comply with the Court’s *2 order, and Daniel has failed to file a verified response or otherwise contact the Court. The undersigned therefore enters these findings of fact, conclusions of law, and recommendation that, for the reasons and to the extent stated below, the Court should dismiss this action without prejudice under Federal Rules of Civil Procedure 41(b).
Legal Standards and Analysis Rule 41(b) “authorizes the district court to dismiss an action sua sponte for failure to prosecute or comply with 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).
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)).
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. *3 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); 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 *4 of the consequences and ‘allowed [her] a second chance at obtaining service’” but she “disregarded that clear and reasonable order”).
By not filing a verified questionnaire response, Daniel has prevented this action from proceeding. And, by so doing, he has failed to prosecute his lawsuit and also failed to obey a court order. A Rule 41(b) dismissal of this lawsuit without prejudice is warranted under these circumstances. The undersigned concludes that lesser sanctions would be futile. The Court is not required to delay the disposition of this case until such time as Daniel decides to comply with the Court’s directives. The Court should therefore exercise its inherent power to prevent undue delays in the disposition of pending cases and sua sponte dismiss this action without prejudice.
But, to the extent that Daniel asserts a Title VII or similar claim, given that the EEOC right-to-sue letter attached to his complaint was issued on April 23, 2019, see Dkt. No. 1 at 2, “this case cannot be timely refiled once dismissed as more than ninety days [will] have elapsed since [Daniel] received [the] right-to-sue letter from the EEOC. Thus, dismissal of [this] case even without prejudice will operate as a dismissal with prejudice,” Dudley v. Dallas Indep. Sch. Dist. , No. 3:99-cv-2634-BC, 2001 WL 123673, at *3 (N.D. Tex. Jan. 12, 2001) (citations omitted); see Berry v. CIGNA/RSI-CIGNA , 975 F.2d 1188, 1191 (5th Cir. 1992) (“If a Title VII complaint is timely filed pursuant to an EEOC right-to-sue letter and is later dismissed, the timely filing of the complaint does not toll the ninety-day limitations period.” (citation omitted)).
The Court should therefore condition its dismissal without prejudice under Rule 41(b) to allow Daniel leave to file a motion to reopen this action on or before 30 days *5 from the date of any order accepting or adopting the findings, conclusions, and recommendation. Cf. Monell v. Berryhill , No. 4:17-cv-22-O-BP, 2017 WL 3098584, at *2 (N.D. Tex. June 30, 2017) (adopting the same procedure where a Social Security appeal was dismissed without prejudice under Rule 41(b)), rec. accepted , 2017 WL 3086326 (N.D. Tex. July 20, 2017).
Recommendation The Court should dismiss this action without prejudice under Federal Rule of Civil Procedure 41(b) and without prejudice to Plaintiff David Daniel, Sr.’s filing a motion to reopen this case on or before 30 days from the date of any order accepting or adopting the findings, conclusions, and recommendation.
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); F ED . R. C IV . 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. *6 United Servs. Auto. Ass’n , 79 F.3d 1415, 1417 (5th Cir. 1996).
DATED: September 26, 2019 _________________________________________ DAVID L. HORAN UNITED STATES MAGISTRATE JUDGE