Sanders Jr v. Cash et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
Floyd Irvin Sanders Jr.,
Plaintiff,
v.
Phillip Cash, et al.,
Defendants.
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Civil Action H-25-5407
MEMORANDUM AND RECOMMENDATION
The court sua sponte recommends this case be DISMISSED
with PREJUDICE for failure to prosecute.
1. Background
This case was set for an initial conference to be held on
February 12, 2026. ECF No. 4. Notice of the hearing was mailed to
the physical address that Plaintiff gave when he filed this lawsuit.
Plaintiff did not appear at the initial conference. See Docket Entry
dated 2/12/2026.
The court then set a hearing for the Plaintiff to appear and
show cause why his case should not be dismissed for want of
prosecution. The order included a warning: “Failure to appear
will result in a recommendation that this case be dismissed
with prejudice for failure to prosecute.” ECF No. 6 (emphasis
in 	original). 	The 	order 	was 	docketed 	on 	the 	court’s 	CM/ECF
system. The hearing was held, and Plaintiff failed to appear. The
court also notes that no defendant has been served, even though
the case has now been pending for over three months.
2. Legal Standard and Analysis
Rule 	Federal 	Rule 	of 	Civil 	Procedure 	41(b) 	permits
involuntary dismissal of an action when “the plaintiff fails to
prosecute or to comply with these rules or a court order[.]” “It is
United States District Court
Southern District of Texas
ENTERED
February 26, 2026
Nathan Ochsner, Clerk
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well established that Rule 41(b) permits dismissal not only on
motion of the defendant, but also on the court’s own motion.”
Campbell 	v. 	Wilkinson, 	988 	F.3d 	798, 	800 	(5th 	Cir. 	2021)
(clarifying that the court’s power to dismiss does not extend to
failure to comply with a local rule). The court’s decision to dismiss
under Rule 41(b) may only be reviewed for abuse of discretion. Id.
at 801.
Rule 41(b) dismissal with prejudice is “a severe sanction”
that requires (1) “a clear record of delay or contumacious conduct
by the plaintiff[;]” and (2) an express finding that “lesser sanctions
would not prompt diligent prosecution, or the record shows that
the district court employed lesser sanctions that proved to be
futile.” 	Campbell, 	988 	F.3d 	at 	801–02 	(quoting 	Berry 	v.
CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992)). In most
cases, the Fifth Circuit also requires proof of at least one of the
following aggravating factors: (1) the delay was caused by the
plaintiff and not the plaintiff’s attorney; (2) the defendant was
prejudiced by the delay; or (3) the delay can be characterized as
intentional. Id. at 802 (quoting Berry, 975 F.2d at 1191).
3. Analysis
A. Clear Record of Delay
Plaintiff is appearing pro se, so he is responsible for all
efforts to prosecute this case. Plaintiff has failed to appear at two
separate court settings. Other than initiating this lawsuit and
requesting to proceed in forma pauperis, Plaintiff has done nothing
on the case. Plaintiff has not contacted the court to provide an
updated address. A copy of the noticing report from the clerk’s
office shows the original order setting the initial conference, the
notice of resetting, and the show cause order were all sent to the
Plaintiff’s mailing address. See Court’s Exhibit 1. These facts show
a clear record of delay.
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B. Futility of Lesser Sanctions
The court set a show cause hearing and warned Plaintiff that
dismissal would result if he missed the final hearing. Plaintiff is
proceeding 	pro 	se, 	so 	a 	financial 	sanction 	would 	likely 	be
futile.There appears to be nothing the court can do to get the
Plaintiff’s attention on this case. There are no other steps the court
can take that will prompt Plaintiff to participate. Lesser sanctions
would be futile.
C. Aggravating Factors
Plaintiff does not have a lawyer, so any delay can only be
attributed to him. The delay in this case can only be characterized
as intentional. Plaintiff has failed to appear for two court-ordered
hearings and has made no attempt to communicate with the court
or serve defendants.
4. Conclusion
The court recommends that this case be DISMISSED with
PREJUDICE for failure to prosecute.
The 	parties 	have 	fourteen 	days 	from 	service 	of 	this
Memorandum and Recommendation to file written objections. 28
U.S.C. 	§ 636(b)(1); 	Fed. 	R. 	Civ. 	P. 	72. 	Failure 	to 	timely 	file
objections will preclude appellate review of factual findings or legal
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conclusions, except for plain error. See Thomas v. Arn, 474 U.S.
140, 147–49 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276–77 (5th
Cir. 1988).
Signed at Houston, Texas, on February 26, 2026.
______________________________________
Peter Bray
United States Magistrate Judge
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