Kannedy et al v. Harris County Commissioners Court et al

1
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JAYDEN L. KANNEDY, et al.,
Plaintiffs,
v.
HARRIS COUNTY
COMMISSIONERS COURT, et al.,
Defendants.
§
§
§
§
§
§
§
§
Case No. 4:25-cv-2417
JUDGE DENA PALERMO’S
REPORT AND RECOMMENDATION 1
Pro se Plaintiffs filed a 30-page complaint with over thirty additional pages
of exhibits, suing Defendants for violations of Plaintiffs’ constitutional rights related
to an April 2022 eviction proceeding. ECF No. 1. Because Plaintiff failed to
prosecute this action and comply with the Court’s orders, the Court recommends that
the case be dismissed under Federal Rule of Civil Procedure 41(b).
I. 	BACKGROUND
Plaintiffs filed suit against the Harris County Commissioners Court, Harris
County Constable’s Office, Houston Police Department, Harris County District
Attorney’s Office, Harris County Clerk’s Office, Harris County, and the City of
Houston. ECF No. 1. Defendants filed motions to dismiss, in which Defendants
1 The district judge to whom this case is assigned referred all pre-trial proceedings to the
undersigned. Referral Order, ECF No. 5.
United States District Court
Southern District of Texas
ENTERED
January 14, 2026
Nathan Ochsner, Clerk
Case 4:25-cv-02417 Document 32 Filed 01/14/26 in TXSD Page 1 of 7

2
argue that the allegations in pro se Plaintiffs’ original complaint fail to state a claim.
ECF Nos. 11, 14, 16, 23, 24, 28.
The Court ordered Plaintiff to correct the deficiencies raised in the motions to
dismiss and file an amended complaint by December 31, 2025. ECF No. 8. 2 To date,
Plaintiffs have not done so. In the same order, the Court granted Plaintiffs’ motion
for an extension of time to serve Defendants and ordered Plaintiffs to serve a copy
of their amended complaint and summons on each Defendant within twenty-one
days of filing their amended complaint. ECF No. 31. 3 There is no evidence before
the Court that Plaintiff has complied with this directive.
II. 	PLAINTIFFS’ LAWSUIT SHOULD BE DISMISSED FOR WANT OF
PROSECUTION.
Federal Rule of Civil Procedure 41(b) provides that if “the plaintiff fails to
prosecute or to comply with these rules or a court order, a defendant may move to
dismiss the action or any claim against it.” Castillo v. Becka, No. 2:21-CV-00162,
2022 WL 5264612, at *2 (S.D. Tex. Aug. 31, 2022), adopted, No. 2:21-CV-00162,
2022 WL 5264650 (S.D. Tex. Oct. 6, 2022) (quoting Fed. R. Civ. P. 41(b). Pursuant
2 The Court also cautioned Plaintiffs that failure to comply with the signature requirements of Rule
11(a) would result in the filing being struck.
3 The Court admonished Plaintiff that Federal Rule of Civil Procedure 4(m) provides that, “[i]f a
defendant is not served within 90 days after the complaint is filed, the court—on motion or on its
own after notice to the plaintiff—must dismiss the action without prejudice against that defendant
or order that service be made within a specified time,” and Rule 4(l) requires proof of service to
be made to the court, unless service is waived. FED. R. CIV. P. 4(l), (m). Dismissal of Harris
County and Harris County Commissioners Court is also appropriate under Rule 4(m).
Case 4:25-cv-02417 Document 32 Filed 01/14/26 in TXSD Page 2 of 7

3
to this rule, the Court “has the inherent authority to dismiss an action sua sponte for
failure to prosecute, with or without notice to the parties,” which flows from the
Court’s “inherent power to control its docket and prevent undue delays in the
disposition of pending cases.” Id. (quoting Clofer v. Perego, 106 F.3d 678, 679 (5th
Cir. 1997) (per curiam); 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, 629-31 (1962))). The
decision to dismiss under Rule 41(b) is reviewed for abuse of discretion. Lancon v.
Stafflink, Inc., No. 	C.A. H-182051, 2019 WL 1046951, at *2 (S.D. Tex. Feb. 5,
2019), adopted, No. CV H-18-2051, 2019 WL 1040980 (S.D. Tex. Mar. 5, 2019)
(citing Link, 370 U.S. at 633; Rogers v. Kroger Co., 669 F.2d 317, 320 (5th Cir.
1982)).
Generally, a dismissal for want of prosecution is without prejudice. Castillo,
2022 WL 5264612, at *3 (Ray v. Johnson & Johnson, No. 1:20-CV-129-DMB-RP,
2021 WL 1030987, at *1 (N.D. Miss. Mar. 17, 2021)). “[A] dismissal with prejudice
for failure to prosecute is an extreme sanction which is to be used only when the
integrity of the judicial process is threatened by plaintiff’s conduct in such a way
that the court is left with no choice except to deny that plaintiff its benefits.” Id.
(citing Gist v. Lugo, 165 F.R.D. 474, 477 (E.D. Tex. 1996) (citing McNeal v.
Papasan, 842 F.2d 787, 790 (5th Cir. 1988))). Rule 41(b) dismissal is “an extreme
sanction” which requires: (1) a clear record of delay or contumacious conduct by
Case 4:25-cv-02417 Document 32 Filed 01/14/26 in TXSD Page 3 of 7

4
Plaintiff; and (2) a finding that lesser sanctions would be, or proved to be, futile. See
id. (citing Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992);
McNeal v. Papasan, 842 F.2d 787, 790 (5th Cir. 1988)). Frequently, the Court
requires proof of at least one aggravating factor: (1) the delay is caused by the
Plaintiff and not Plaintiff’s attorney, (2) Defendants were actually prejudiced
because of the delay, or (3) the delay is intentional. Lancon, 2019 WL 1046951,
at *2 (Papasan, 842 F.2d at 790; Sturgeon v. Airborne Freight Corp., 778 F.2d 1154,
1159 (5th Cir. 1985)).
Despite the Court’s order to do so, Plaintiffs have not filed an amended
complaint or shown they have served Defendants with their amended complaint.
Plaintiffs have not had any contact with the Court since they filed their motion for
an extension of time to serve Defendants on September 17, 2025. ECF No. 7. 4 These
facts constitute a record of delay caused by Plaintiffs’ failure to prosecute this case.
Castillo, 2022 WL 5264612, at *2 (“Dismissal is warranted, because Plaintiff failed
to update the Court regarding her search for new counsel, failed without excuse to
attend a scheduled hearing, failed to respond to Defendant’s motion to dismiss, and
failed otherwise to communicate with the Court.”) (citing Gilmore v. Guild Mortg.
Co., L.L.C., No. 1:21-CV-00621-MAC-ZJH, 2022 WL 2712385, at *1 (E.D. Tex.
4 Plaintiffs’ process server last filed an executed summons against Lina Hidalgo, who is unnamed
in the complaint, on October 23, 2025. ECF No. 22.
Case 4:25-cv-02417 Document 32 Filed 01/14/26 in TXSD Page 4 of 7

5
Feb. 22, 2022), adopted, No. 1:21-CV-00621, 2022 WL 2712382, at *1 (E.D. Tex.
Mar. 10, 2022) (dismissal appropriate under Rule 41(b) where the plaintiff failed to
confer with the defendant and failed to respond to the motion to dismiss); Douglas
v. Zabransky, No. H-18-4168, 2019 WL 3628748, at *1 (S.D. Tex. July 18, 2019),
adopted, 2019 WL 3570451, at *1 (S.D. Tex. Aug. 5, 2019) (dismissal warranted
where the plaintiff failed to comply with court orders, failed to respond to the motion
to dismiss, and did not appear at a scheduling conference); Connely v. City of
Pascagoula, No. 1:11-CV-293-HSO-JMR, 2013 WL 2182944, at *2 (S.D. Miss.
May 20, 2013) (granting a motion to dismiss for want of prosecution where the
plaintiffs failed to take action in the case, contact the court, and comply with court
orders); Martin v. Gilbert, No. 1:12-CV-327-HSO-RHW, 2013 WL 4014990, at *2
(S.D. Miss. Aug. 6, 2013) (same)).
Furthermore, 	the 	Court 	unsuccessfully 	admonished 	Plaintiffs, 	a 	lesser
sanction. In the order discussed above, the Court warned Plaintiffs that their failure
to file an amended complaint may result in the case being dismissed for lack of
prosecution. The Court also admonished Plaintiffs that failure to provide proof of
service of the unserved Defendants may result in those parties’ dismissal from the
lawsuit. Also in this order, the Court extended Plaintiffs’ deadline to respond to the
motions, permitting Plaintiff over three months to respond and extended Plaintiff’s
service deadline by more than a month—again, futile efforts. Id. 	The Court is not
Case 4:25-cv-02417 Document 32 Filed 01/14/26 in TXSD Page 5 of 7

6
convinced that monetary sanctions would have any effect, considering Plaintiffs’
pro se status. See Lancon, 2019 WL 1046951, at *3. In sum, the Court finds that
sanctions other than dismissal would be pointless. It appears that Plaintiffs have
abandoned their suit.
The Court recommends that Plaintiffs’ case be dismissed with prejudice.
There is a sufficient record to find the delay is the result of Plaintiffs’ inactions, and
further, their failure to amend and Defendants, despite an order and ample time to
do so, cannot be characterized as anything but intentional. See Lancon, 2019 WL
1046951, at *2. The two duties enumerated in the Court’s order: to file an amended
complaint and serve the amended complaint on Defendants fall on Plaintiffs’
shoulders as pro se litigants. On this record, dismissal with prejudice is appropriate.
Accordingly, the Court recommends dismissing this case with prejudice, in
accordance with Federal Rule of Civil Procedure 41(b). See Castillo, 2022 WL
5264612, at *2.
III. 	CONCLUSION
The Court 	RECOMMENDS 	that this lawsuit be 	DISMISSED WITH
PREJUDICE under Federal Rule of Civil Procedure 41(b).
The 	Parties 	have 	fourteen 	days 	from 	service 	of 	this 	Report 	and
Recommendation to file written objections. 28 U.S.C. § 636(b)(1)(C); Fed.
R. Civ. P. 72(b). Failure to file timely objections will preclude appellate review
Case 4:25-cv-02417 Document 32 Filed 01/14/26 in TXSD Page 6 of 7

7
of factual findings or legal conclusions, except for plain error. Ortiz v. San
Antonio Fire Dep’t, 806 F.3d 822, 825 (5th Cir. 2015).
Signed on January 14, 2026, at Houston, Texas.
___________________________________
Dena Hanovice Palermo
United States Magistrate Judge
______________________________
Dena Hanovice Palermo
United States Magistrate Judge
Case 4:25-cv-02417 Document 32 Filed 01/14/26 in TXSD Page 7 of 7