Petition for Writ of Certiorari — Xavier Crittendon, Petitioner v. Texas Department of Family and Protective Services, et al.

Case: 17-10334

Document: 00514117887 Page: 1 Date Filed: 08/16/2017

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-10334

XAVIER CRITTENDON,

Plaintiff Appellant

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A True Copy

Certified order issued Aug 16, 2017

W. OC4'CA

Clerk, S. Court of 4pea1s, Fifth Circuit

V.

STATE OF TEXAS, DEPARTMENT OF FAMILY AND PROTECTIVE

SERVICES; ROSA K. PHIFER, Staff Attorney, Department of Family and

Protective Services; JONATHAN MILES, Open Records Attorney,

Department of Family and Protective Services; CONNIE PRESLEY, Program

Administrator, Department of Family and Protective Services; KERRI

FOWLER, Director, Department of Family and Protective Services; ERICA

VAN, Austin Background Check Unit, Department of Family and Protective

Services; SONIA MARTINEZ, Administrative Assistant, Department of

Family and Protective Services; KRISTIANNA ARANDA, Administrative

Assistant, Department of Family and Protective Services; KIM DAVIS, Staff

Supervisor, Department of Family and Protective Services; LECRECIA

WELLS, Inspector, Department of Family and Protective Services; ANDREA

RICKARD, Program Improvement Specialist, Department of Family and

Protective Services; ALEXANDER GARCIA, Supervisor, Department of

Family and Protective Services; RAMONA EVANS, Inspector, Department of

Family and Protective Services; AMANDA HERRINGTON, Background

Check Unit, Department of Family and Protective Services; NEVA WARD,

Background Check Unit, Department of Family and Protective Services;

ERIN RAGSDALE, Program Improvement Specialist, Department of Family

and Protective Services; WALTER RIDEAUX, Inspector, Department of

Family and Protective Services; ROSEZELLA LEWIS, Supervisor,

Department of Family and Protective Services; ASIA (UNKNOWN) AUSTIN

CORPORATE; LASHONDA RENA GREEN,

Defendants Appellees

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Case: 17-10334

Document: 00514117887 Page: 2 Date Filed: 08/16/2017

17-10334

Appeal from the United States District Court for the

Northern District of Texas, Dallas

USDC No. 3:16-CV-2229

Before REAVLEY, SOUTHWICK, and COSTA, Circuit Judges.

PER CURIAM:

This court must examine the basis of its jurisdiction, on its own motion

if necessary. Hill v. City of Seven Points, 230 F.3d 167, 169 (5th Cir. 2000).

Pursuant to 28 U.S.C. § 2107(a) and Federal Rule of Appellate Procedure

4(a)(1)(A), the notice of appeal in a civil case must be filed within thirty days

of entry of judgment. In this civil rights case, the district court entered final

judgment dismissing the complaint on December 5, 2016. Therefore, the final

day for filing a timely notice of appeal was January 4, 2017. The plaintiffs

notice of appeal was filed on March 22, 2017. The time limitation for filing a

notice of appeal in a civil case is jurisdictional. Bowles v. Russell, 551 U.S. 205,

214 (2007). The lack of a timely notice mandates dismissal of the appeal.

Robbins v. Maggio, 750 F.2d 405, 408 (5th Cir. 1985). All pending motions are

denied as moot.

IT IS SO ORDERED.

Case 3:16-cv-02229-G-BK Document 14 Filed 12/05/16 Page 1 o12 PagelD 310

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

XAVIER CRITFENDON,

Plaintiff,

CIVIL ACTION NO.

VS.

3:16-CV-2229-G (BI()

STATE OF TEXAS DEPARTMENT OF

FAMILY AND PROTECTIVE

SERVICES, ET AL.,

Defendants.

ORDER ACCEPTING FINDINGS, CONCLUSIONS AND

RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

The United States Magistrate Judge made findings, conclusions and a

recommendation in this case. Plaintiff filed objections, and the district court has

made a de nova review of those portions of the proposed findings and

recommendation to which objection was made. The objections are overruled, and the

court ACCEPTS the findings, conclusions and recommendation of the United States

Magistrate Judge.

It is therefore ORDERED that this action is DISMISSED without prejudice

for want of prosecution. See FED. R. CIV. P. 41(b).

Case 3:16-cv-02229-G-BK Document 14 Filed 12/05/16 Page 2 of 2 PagelD 311

The court prospectively CERTIFIES that any appeal of this action would not

be taken in good faith. See 28 U.S.C. § 1915(a)(3); FED. R. APP. P. 24(a)(3). In

support of this certification, the court adopts and incorporates by reference the

magistrate judge's findings, conclusions and recommendation. See Baugh v. Taylor,

117 F.3d 197, 202 and n.21 (5th Cir. 1997). Based on the findings and

recommendation, the court finds that any appeal of this action would present no

legal point of arguable merit and would, therefore, be frivolous. Howard v. King, 707

F.2d 215, 220 (5th Cir. 1983). In the event of an appeal, plaintiff may challenge

this certification by filing a separate motion to proceed in farina pauperis on appeal

with the Clerk of the Court, U.S. Court of Appeals for the Fifth Circuit. See Baugh,

117 F.3d at 202; FED. R. APP. P. 24(a)(5).

December 5, 2016.

A.J EFISH

Senior United States District Judge

Federal Rule of Appellate Procedure 4(a) governs the time to appeal an

order. A timely notice of appeal must be filed even if the district court certifies an

appeal as not taken in good faith.

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Case 3:16-cv-02229-G-BK Document 12 Filed 11/07/16 Page 1 of 2 PagelD 306

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

§

§

§

V.

§

§

STATE OF TEXAS DEPARTMENT OF

§

FAMILY AND PROTECTIVE SERVICES, §

et at.,

§

Defendants.

§

XAVIER CRITTENDON,

Plaintiff,

CIVIL NO. 3:16-C V-2229-G-BK

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. § 636(b) and Special Order 3, this case was referred to the United

States magistrate judge. For the reasons that follow, this action should be DISMISSED

WITHOUT PREJUDICE for want of prosecution.

I. BACKGROUND

On September 23, 2016, the Court issued a deficiency order, which required Plaintiff to

resubmit his motion to proceed in forma pauperis on the A0239 form. Doc. 11. The deadline

for Plaintiff's response was October 14, 2016. As of the date of this recommendation, however,

Plaintiff has not responded to the Court's order, nor has he sought an extension of time to do so.

II. ANALYSIS

Rule 41(b) of the Federal Rules of Civil Procedure allows a court to dismiss an action sua

sponte for failure to prosecute or for failure to comply with the federal rules or any court order.

Larson v. Scott, 157 F.3d 1030, 1031 (5th Cir. 1998). "This authority flows from the court's

inherent power to control its docket and prevent undue delays in the disposition of pending

cases." 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 (1962)).

Case 3:16-cv-02229-G-BK Document 12 Filed 11/07/16 Page 2 of 2 PagelD 307

Plaintiff has been given ample opportunity to respond to the Court's order. He has

impliedly refused or declined to do so. Therefore, this action should be dismissed without

prejudice for lack of prosecution. See FED. R. CIV. P. 41(b) (an involuntary dismissal "operates

as an adjudication on the merits," unless otherwise specified). Plaintiff was duly warned of this

consequence if he failed to comply with the Court's order. Doc. 11.

III. RECOMMENDATION

For the foregoing reasons, it is recommended that this action be DISMISSED

WITHOUT PREJUDICE for want of prosecution.

SIGNED November 7, 2016.

1

RRIS TOLl VER

ATES MAGISTRATE JUDGE

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation will be served on all parties in the manner

provided by law. Any party who objects to any part of this report and recommendation must file

specific written objections within 14 days after being served with a copy. See 28 U.S.C. §

636(b)(1); FED. R. Civ. P. 72(b). In order to be specific, an objection must identify the specific

finding or recommendation to which objection is made, state the basis for the objection, and

specify the place in the magistrate judge's report and recommendation where the disputed

determination is found. An objection that merely incorporates by reference or refers to the

briefing before the magistrate judge is not specific. Failure to file specific written objections will

bar the aggrieved party from appealing the factual findings and legal conclusions of the

magistrate judge that are accepted or adopted by the district court, except upon grounds of plain

error. See Douglass v. United Services Automobile Ass 'n, 79 F.3d 1415, 1417 (5th Cir. 1996).

E.RISTOLIVER

ATES MAGISTRATE JUDGE

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Addaitoional material

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from this filing ,l s

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available in the

Clerk's Office.