Conish v. Bush Administration et al, No. 3:2009cv01129 - Document 6 (N.D. Tex. 2009)
Court Description: FINDINGS AND RECOMMENDATIONS on case: Plaintiff's complaint should be dismissed with prejudice. Magistrate Judge Jeff Kaplan no longer assigned to case. (See order). (Ordered by Magistrate Judge Jeff Kaplan on 8/25/2009) (jca)
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Conish v. Bush Administration et al Doc. 6 IN THE LTNITED STATESDISTRICTCOURT NORTHERNDISTRICTOF TEXAS DALLAS DIVISION TRAVIS DWAYNE CONISH Plaintiff, VS. BUSH ADMINISTRATION2008, ET AL. Defendants. $ $ $ $ $ $ $ $ NO.3-09-CV-1I29-L s $ FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE This case has been referred to the United Statesmagistratejudge for initial screening from the district court. The frndings orderof reference pursuantto 28 U.S.C. $ 636(b)anda standing judge are as follow: of and recommendation the magistrate I. This is a pro se civil action brought by Travis Dwayne Conish, a former Texasprisoner, identified only as the "Bush Administration 2008" and the "Obama againsta group of defendants Administration 2009." On June l5,2}}g,plaintiff submitteda two-pagehandwrittencomplaintto the the district clerk and filed an applicationto proceedinforma pauperis. Because information to that he lacksthe fundsnecessary prosecute affrdavitindicates providedby plaintiff in his pauper's the this case, court grantedleaveto proceedinforma pauperisandallowedthe complaintto be filed. to On June 22,2009, the court sent written interrogatories plaintiff in order to obtain additional information about the factual basis of his suit. Plaintiff was warned that the failure to answerthe within 20 days "may result in the dismissalof the complaintfor failure to prosecute interrogatories Dockets.Justia.com pursuantto Fed. R. Civ. P. 4l(b)." No answerswere filed. The interrogatories were remailedto plaintiff on July 22,2009. Once again, plaintiff was warned that the failure to serve interrogatory answerswithin 20 days "may result in the imposition of sanctions,including dismissal of the action The court now the for want of prosecution,"To date,plaintiff still hasnot answered interrogatories. determines that this caseshouldbe dismissedwith prejudicepursuantto Fed. R. Civ. P. 4l(b). il. A district court has authority to dismiss a case for want of prosecution or for failure to comply with a court order. Feo. R. Ctv. P. a I (b); Larson v. Scott,157 F.3d 1030,103I (5th Cir. 1998). This authority"flows from the court'sinherentpowerto control its docketandpreventundue Boudwinv.GraystoneInsuranceCo.,756F.2d399,40l delaysinthedispositionofpendingcases." RailroadCo.,370U.S. 626, 82 S.Ct.1386,8 L.8d.2d734 (5th Cir. 1985), citingLinkv. Wabash SeeLongv,Simmons,77F.3d878,879(1962).Suchadismissalmaybewithorwithoutprejudice. 80 (5th Cir. 1996). A dismissal with prejudice is appropriateonly if the failure to comply with the conductand the imposition of lesser court order was the resultof purposefuldelayor contumacious sanctionswould be futile. Id.; see also Berry v. CIGNA/RSI-CIGNA,975F.2d 1188, l19l (5th Cir. 1992). A. The court sent written interrogatoriesto plaintiff nearly two months ago. Plaintiff has not answeredthe interrogatoriesdespiterepeatedwarnings that his failure to do so would result in the dismissal of the case. The court must obtain additional information about the factual basis of this suit in order to screenthe complaint and determinewhether processshould be issued to the defendants.The inability to proceedwith this litigation is directly attributableto plaintiffs failure See underthesecircumstances. Dismissalis clearlywarranted to provide the informationrequested. Wiggins Management v. andTrainingCorp., 3-03-CV-1547-L,2003WL22259080 I (N.D. No. at * (N.D. Tex. Oct. 20,2003) (dismissing Tex. Sept.25,2003),rec. adopted,2003 WL 22415739 complaintfor failureto answer written interrogatories). B. The court further determinesthat plaintiffs complaint should be dismissedwith prejudice. wherea plaintiffs litigation history as a whole reveals A dismissalwith prejudicemay be warranted conduct. SeeEdmondv. Quarterman,No. 3-08-CV-1396-M,2008 a clear recordof contumacious conduct" WL 5157857at *4 (N.D. Tex. Dec. 8, 2008). The Fifth Circuit hasdefined"contumacious to as the "stubbom resistance authority." McNeal v. Papasan,842 F .2d 787, 792 (5th Cir. 1988), quoting John v. State of Louisiana, 828 F.2d 1129, ll31-32 (5th Cir. 1987). In addition, courts generally require the presenceof at least one of three aggravatingfactors to justiff a dismissal with by prejudice: (l) delaycaused the litigant himself; (2) actualprejudiceto the opposingpartytor (3) delay causedby intentional conduct. See Edmond,2008 WL 5157857 at *3, quoting Price v. McGlathery, 792 F .2d 472, 474 (5th Cir. I 986). Over the past two years,plaintiff has filed 15 different lawsuits in this district. Thirteen of or were dismissedfor want of prosecution for failure to comply with a court order. See thosecases (N.D. Tex. Apr. 29,2009);Conishv. Deputy Conishv. Terrell StateHospital,No. 3-09-CV-0212-P on Shifr of Cell 8 and Cell 7, No. 3-08-CY-2274-K CN.D.Tex. Mar. 23,2009); Conish v. Social Dallas Tex.Mar. 2,2009);Conishv. of No. Security Administration U.S.A., 3-08-CY-2177-K(N.D. Job Corps, 78-D (N.D. Tex. Nov. 14,2008); Conishv. North Texas CountyPolice, No. 3-07-CV -21 No.3-08-CV-0804-B(N.D. Tex. Aug. 19,2008);Conishv.TeruellStateHospital,No.3-07-CV(N.D. Job Corps,No. 3-08-CV-0506-K 2180-O(N.D. Tex. Jul. 3 1, 2008);Conishv. North Texas No. 3-08-CV-0437-D,2008WL 2522495(N.D. Tex. Tex. Jul. 28,2008); Conishv. Stateof Texas, Jun.24,2008); Conishv. BanlutonChevrolet,No.3-07-CV-2176-8,2008 WL 1885759 [N.D.Tex. (N.D.Tex. Apr.28,2008); Conishv. of Dallas,No.3-07-CV-2175-M,2008 City WL1793027 Apr. 15,2008);Conish TenellState v. Tex. Hospital,No.3-07-CY-2179-K,2008 1776452 WL Q.,l.D. (N.D. Mar. 19,2008); Conish Rusk v. State Hospital,No.3-07-CV-2177-G Tex.Mar. 13,2008); (N.D.Tex.Mar. Conishv. Presbyterian Hospital Dallas, 3-07-CV-2181-K, WL 681476 No. 2008 of I l, 2008).A search thePACERwebsite reveals plaintiffhas that filedat least nineotherlawsuits of for weredismissed failureto comply in federalcourtsin TexasandArizona. Five of those cases (E.D.Tex. Apartments, 4-08-CV-0124-MHS-DDB with courtorders.SeeConishv. Century No. (D. 2-08-CV-0661-MHM Ariz.May19, Police Officers,No. Conishv. Commission Jun.24,2008); (D. v. Conish Motelle,No. No. v. 2008);Conish Jones, 2-08-CV-0490-JAT Ariz. Apr. 16,2008); No. (D. v. and Conish Citizen Non-Citizens, 2-08-CV2-08-CV-0487-DKD Ariz. Apr. I 1,2008); the history, courthaslittle difficulty (D. 0491-ECV Ariz. Mar.2l, 2008).' In view of thislitigation refusing comply to of and in that in concluding plaintiff hasengaged a pattern practice intentionally his and,ultimately, the delaying ability of the courtto screen complaints thereby with courtorders, justifies a conduct of resultingin the dismissal his cases. This clearrecordof contumacious at WL21754965 * I (5th Fed.Appx.24,25,2003 v. See with dismissal prejudic,e. Smilde Snow,73 Cir. Jul. 30, 2003) (holdingthat plaintiffs historyof delayand refusalto follow court orders with prejudice). warranted dismissal I Two caseswere dismissedfor lack ofjurisdiction. SeeConish v. Room 2-i0, No. 2-08-CV-0485-JAT(D. (D. WL CV-08-486-PHX-DGC,2008 820563 Ariz. Mar.25,2008). Two Ariz. Apr. 15,2008);Conishv.Jackson,No. for were dismissed failureto comply with the FederalRulesof Civil Procedure.Conishv. Diesel,No. 2-08other cases (D. CV-0489-FJM(D. Ariz. Mar.26,2008); Conishv.Shakur,No.2-08-CV-0488-SRB Ariz. Mar. 14,2008). n. Federalcourtshave inherentauthority"to protectthe efficient and orderly administration of justice and . . . to command respectfor [its] orders,judgments, procedures,and authority." In re Stone,986F.2d 898, 902 (5th Cir. 1993). Includedin suchpower is the authorityto levy sanctions in responseto abusive litigation practices. 1d. Sanctionsmay be appropriatewhen apro se litigant hasa history of submittingmultiple frivolous claims. SeeFeo. R. Cry. P. 1l; Mendozav. Lynaugh, (5thCir. 1993).Litigantswhoabusethejudicialprocessare "notentitledto 989F.2d l9l, 195-97 sue and appeal without paying the normal filing fees--indeed,are not entitled to sue and appeal, WL21448362 at *l (N.D.Tex. May 5, period." Brewer v. Cockrell,No. 3-03-CV-0768-P,2003 2003),rec. adopted,2003WL 21488150(N.D. Tex. May 15,2003),quoting Free v. UnitedStates, and may include monetarysanctions 879 F .2d 1535, 1536(7th Cir. 1989). Appropriatesanctions restrictions on the ability to file future lawsuits without leave of court. Seegenerally, McCampbell available (N.D.Tex. 1997)(discussing sanctions v. KPMG PeatMarwick,982F.Supp.445,448-49 to deter and punish pro se litigants for abusing the judicial system by filing multiple frivolous lawsuits). In light of plaintiffs litigation history, he should be warned that any future lawsuits or dismissedas frivolous, for failure to prosecute, for failureto comply with a court ordermay result may includean orderbarringhim from filing any civil in the imposition of sanctions.Suchsanctions actionswithout paying the requiredfiling fee or obtainingprior authorizationfrom a districtjudge judge. or magistrate RECOMMENDATION Plaintiffs complaint should be summarily dismissedwith prejudicepursuantto 28 U.S.C. as $ 1915(e)(2).In addition,plaintiff shouldbe warnedthat any futurelawsuitsdismissed frivolous, or for failure to prosecute, for failure to comply with a court order may result in the imposition of sanctions,including an order baring him from filing any civil actions without paying the required filing fee or obtaining prior authorization from a district judge or magistratejudge. A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of this report and recommendationmust file specificwrittenobjectionswithinl0daysafterbeingservedwithacopy. See28U.S.C.$636(bXl); FBp. R. Ctv. P. 72(b). In order to be specifrc, an objection must identi$' the specific finding or recommendationto which objection is made, statethe basisfor the objection, and speciff the place in the magistratejudge's report and recommendationwherethe disputeddeterminationis found. An objection that merely incorporatesby referenceor refers to the briefing before the magistratejudge is not specific. Failure to file specific written objectionswill bar the aggrievedparty from appealing judge that are acceptedor adoptedby the the factual findings and legal conclusionsof the magistrate AutomobileAss'n, district court,exceptupongroundsofplain error. SeeDouglassv. UnitedServices 79 F.3d 1415,l4l7 (5th Cir. 1996). 25,2009. DATED: August LAN JTJDGE MAGISTRATE STATES
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