Gilliam v. Gonzalez et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
LEROY GILLIAM,
Plaintiff,
v.
ED GONZALEZ, ET AL.,
Defendants.
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Case No. 4:25-cv-05083
JUDGE DENA PALERMO’S
REPORT AND RECOMMENDATION 1
Pro se plaintiff filed a complaint, initiating this lawsuit on September 12,
2024, ECF No. 1. On November 21, 2025, Defendants Chief J. Noe Diaz filed a Rule
12(b)(1) and (6) motion to dismiss. ECF No. 16. On the same day, Defendants
Sheriff Sherman Eagleton and Constable Ed Gonzalez filed a Rule 12(b)(6) motion
to dismiss. ECF No. 18. On December 17, 2025, Defendant Harris County District
Attorney’s Office filed a Rule 12(b)(6) motion to dismiss. ECF No. 22. The Court
ordered Plaintiff to respond by January 8, 2026. ECF No. 21. Plaintiff did not
respond 	to 	the 	motions. 	The 	Court 	again 	ordered 	Plaintiff 	to 	respond 	by
February 13, 2026. ECF No. 23. To date, Plaintiff has not complied with the Court’s
directives. Because Plaintiff failed to prosecute this action and comply with the
1 The district judge to whom this case is assigned referred all pre-trial proceedings to the
undersigned. Referral Order, ECF No. 14.
United States District Court
Southern District of Texas
ENTERED
February 20, 2026
Nathan Ochsner, Clerk
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Court’s orders, the Court recommends that the case be dismissed under Federal Rule
of Civil Procedure 41(b).
I. 	BACKGROUND
Broadly construing his pro se amended complaint, it appears that Plaintiff
filed the instant suit against Defendants for conspiracy, harassment, elder abuse, and
filing false reports. ECF No. 12.
On November 21, 2025, Defendants Chief J. Noe Diaz filed a Rule 12(b)(1)
and (6) motion to dismiss. ECF No. 16. Plaintiff’s response was due December 12,
2025. On the same day, Defendants Sheriff Sherman Eagleton and Constable Ed
Gonzalez filed a Rule 12(b)(6) motion to dismiss. ECF No. 18. Plaintiff’s response
was due December 12, 2025. On December 17, 2025, Defendant Harris County
District Attorney’s Office filed a Rule 12(b)(6) motion to dismiss. ECF No. 22. The
Court ordered Plaintiff to respond by January 8, 2026. ECF No. 21. Plaintiff did not
respond to any of the motions.
When Plaintiff failed to respond to the motion, the Court ordered Plaintiff to
respond by February 13, 2026. ECF No. 23. In the order, the Court warned Plaintiff
that failure to respond to the motion to dismiss may result in his case being dismissed
for want of prosecution. ECF No. 23. To date, Plaintiff has not responded to the
motions to dismiss. In fact, Plaintiff has not filed anything in the case since filing his
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amended complaint—the subject of the motions to dismiss—and a subpoena for
documents on November 7, 2025. ECF Nos. 12, 13.
II. 	PLAINTIFF’S 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
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. CIVILACTIONH182051, 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,
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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
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)).
In the months since their filings, Plaintiff has not filed a response to the
motions to dismiss despite the Court’s order to do so. Plaintiff has not corresponded
with the Court since November 2025. ECF No. 13. These facts constitute a clear
record of delay Plaintiff’s failure to prosecute this case has caused. Castillo, 2022
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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. 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)).
The Court unsuccessfully admonished Plaintiff, a lesser sanction. In the order
discussed above, the Court warned Plaintiff that his failure to respond may result in
the case being dismissed for lack of prosecution. Also in this order, the Court
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extended Plaintiff’s deadline to respond, permitting Plaintiff months to respond—
again, futile efforts. The Court is not convinced that monetary sanctions would have
any effect, considering Plaintiff’s 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 Plaintiff has abandoned his suit.
Moreover, the Court recommends that Plaintiff’s case be dismissed with
prejudice. Because Plaintiff is a pro se litigant, the delay is his fault, and further, his
failure to respond to the motions, despite an order and ample time to do so, cannot
be characterized as anything but intentional. See Lancon, 2019 WL 1046951, at *3.
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
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).
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Signed on February 20, 2026, at Houston, Texas.
___________________________________
Dena Hanovice Palermo
United States Magistrate Judge
_______________________________
Dena Hanovice Palermo
United States Magistrate Judge
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