Opinion
No. 4:05CV65-M-D.
June 16, 2005
ORDER DISMISSING COMPLAINT PURSUANT TO RULE 41(B)
Upon further consideration of the complaint and the files and records in this action, the court finds that an order dated May 17, 2005, denied plaintiff's application to proceed in forma pauperis, and he was given 20 days to pay the statutory filing fee. Plaintiff was warned that his failure to timely comply with the requirements of the order might lead to dismissal of his lawsuit.
Although more than 20 days have elapsed since that time, plaintiff has failed to submit the forms as ordered. Rule 41(b), Federal Rules of Civil Procedure, provides, inter alia,
For failure of the plaintiff to prosecute or to comply with these Rules or any order of the court defendant may move for dismissal of an action or of any claim against him.
Even though the Rule speaks in terms of dismissal on motion of a defendant, it is now settled that the court has the inherent authority to dismiss sua sponte for want of prosecution. Link v. Wabash Railroad, 370 U.S. 626 (1962); Lopez v. Aransas County Independent School District, 570 F.2d 541, 544 (5 Cir. 1978). Rule 41(b) further provides, inter alia:
Unless the court in its order for dismissal otherwise specifies, dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.
Since the court has never considered the merits of plaintiff's claims, the court's order of dismissal should provide that dismissal is without prejudice. Shaw v. Estelle, 542 F.2d 954 (5th Cir. 1976).
Therefore, it is hereby
ORDERED that the cause be dismissed without prejudice pursuant to Rule 41(b), Federal Rules of Civil Procedure, for failure to comply with an order of the court.