White v. Owens et al

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
TIMOTHY WHITE, §
§
Plaintiff, §
§
V. § No. 3:26-cv-103-D-BN
§
SUSAN OWENS, ET AL., §
§
Defendants. §
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
Plaintiff Timothy White filed a pro se complaint alleging claims under the Fair
Housing Act and Civil Rights Act of 1866. See Dkt. No. 3. White also filed a motion
for leave to proceed in forma pauperis (“IFP”). See Dkt. No. 4. So Senior United States
District Judge Sidney A. Fitzwater referred White’s lawsuit to the undersigned
United States magistrate judge for screening under 28 U.S.C. § 636(b) and a standing
order of reference.
White’s IFP motion was deficient, so the Court ordered White to file an
amended IFP motion to cure the deficiency by February 25, 2026. See Dkt. No. 6. And
the Court warned White that, “if the deficiency is not timely cured, the undersigned
will recommend that this action be dismissed under Federal Rule of Civil Procedure
41(b).” Id. at 1.
It is now more than a month past the court-ordered deadline to file an amended
IFP motion, but White has failed to comply with the Court’s order. Considering this
record, the undersigned enters these findings of fact, conclusions of law, and
Case 3:26-cv-00103-D-BN Document 7 Filed 03/26/26 Page 1 of 6 PageID <pageID>

- 2 -
recommendation that the Court should dismiss this action without prejudice under
Federal Rule of Civil Procedure 41(b).
Discussion
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
Case 3:26-cv-00103-D-BN Document 7 Filed 03/26/26 Page 2 of 6 PageID <pageID>

- 3 -
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); 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))).
Case 3:26-cv-00103-D-BN Document 7 Filed 03/26/26 Page 3 of 6 PageID <pageID>

- 4 -
“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”).
By not complying with the order to file an amended IFP motion – in addition
to leaving the impression that White no longer wishes to pursue these claims – White
has prevented this action from proceeding and has thus failed to prosecute this
lawsuit.
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 White
decides to obey the Court’s order or contact the Court, 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).
It is not apparent based on the record here whether dismissal of this lawsuit
without prejudice at this stage would effectively be a dismissal with prejudice – for
example, because a statute of limitations would prevent White’s refiling these claims.
But, insofar as this dismissal may somehow prejudice White, these findings,
Case 3:26-cv-00103-D-BN Document 7 Filed 03/26/26 Page 4 of 6 PageID <pageID>

- 5 -
conclusions, and recommendation afford notice, and the opportunity to file objections
(further explained below) affords an opportunity to respond, to explain why this case
should not be dismissed for the reasons set out above. Cf. 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. CIV.
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
Case 3:26-cv-00103-D-BN Document 7 Filed 03/26/26 Page 5 of 6 PageID <pageID>

- 6 -
adopted by the district court, except upon grounds of plain error. See Douglass v.
United Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996).
DATED: March 26, 2026
_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE
Case 3:26-cv-00103-D-BN Document 7 Filed 03/26/26 Page 6 of 6 PageID <pageID>