United States District Court, S.D. Mississippi, Southern Division
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND
RECOMMENDATION , AND DISMISSING PLAINTIFF'S CLAIMS
SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE.
matter comes before the Court on the Report and
Recommendation  of United States Magistrate Judge John C.
Gargiulo, entered on November 10, 2016. The Magistrate Judge
recommended that pro se Plaintiff James Hickman's
Complaint  and Amended Complaint  be dismissed for his
failure to obey Orders   of the Court and failure to
prosecute. R. & R.  at 4. After due consideration of
the Report and Recommendation , the record, and relevant
legal authority, the Court finds that the Report and
Recommendation should be adopted as the finding of this
Court, and that Plaintiff's claims in this action should
be dismissed without prejudice.
September 10, 2015, Plaintiff James Hickman
(“Plaintiff”) filed a Complaint  against
Defendants Sergeant Ramon Castillo, Lieutenant Aldon Helmert,
and the Biloxi Police Department pursuant to 42 U.S.C. §
1983. Upon receipt of the filing fee, the Clerk mailed a
Memorandum  to Plaintiff advising Plaintiff of his
responsibility for service of the Complaint  on
Defendants. Mem.  at 1. On January 6, 2016, Plaintiff
filed an Amended Complaint  which advanced additional
allegations against Defendants. Also on January 6, 2016, the
Clerk issued Summons for Defendant Castillo, and mailed
Plaintiff the Summons, the Waiver of Summons form and a
second Memorandum concerning service. Mem.  at 1.
February 18, 2016, the Magistrate Judge entered an Order to
Show Cause  requiring Plaintiff to file a written response
on or before March 11, 2016, showing cause why Plaintiff had
failed to file a proof of service or otherwise prosecute the
matter. Order  at 1-2. The Order  further advised
Plaintiff that failure to comply with the Court's Order
or to keep the Court apprised of his current address may
result in dismissal of this suit. Id. Plaintiff did
not respond to the Order.
March 18, 2016, the Magistrate Judge entered a Second and
Final Order to Show Cause  requiring Plaintiff to file a
written response on or before April 4, 2016, showing cause
why Plaintiff had failed to file a proof of service, had
failed to file a response to the first Order to Show Cause
 or to otherwise prosecute the matter, and why this matter
should not be dismissed. Order  at 1-2. The Order 
further advised Plaintiff that failure to comply with the
Court's Orders   or to keep the Court apprised of
his current address may result in dismissal of this suit.
Id. Plaintiff did not respond to the Show Cause
November 10, 2016, the Magistrate Judge entered a Report and
Recommendation , recommending that Plaintiff's Amended
Complaint be dismissed for Plaintiff's failure to obey
Orders of the Court and failure to prosecute. R. & R. 
at 4. A copy of the Report and Recommendation was mailed to
Plaintiff at his address of record via certified mail on
November 10, 2016, and that mail  was returned to the
Clerk stamped “RETURN TO SENDER[, ] ATTEMPTED - NOT
KNOWN[, ] UNABLE TO FORWARD” on November 18, 2016.
has not objected to the Report and Recommendation, and the
time for doing so has passed. Plaintiff has not filed
anything in this case since January 6, 2016, when he filed
his Amended Complaint  and Summons  was issued to
Defendant Castillo. Nor has Plaintiff updated his mailing
address with the Court, even though Plaintiff has been warned
in Orders   issued by the Magistrate Judge that failure
to advise the Court of a change of address would be deemed as
a purposeful delay and contumacious act by Plaintiff which
could result in dismissal of this case. See Order
 at 2; Order  at 2.
no party has objected to a magistrate judge's proposed
findings of fact and recommendation, the Court need not
conduct a de novo review of it. 28 U.S.C. § 636(b)(1)
(“A judge of the court shall make a de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection is
made.”). In such cases, the Court applies the
“clearly erroneous, abuse of discretion and contrary to
law” standard of review. United States v.
Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989).
conducted the required review, the Court concludes that the
Magistrate Judge's findings are not clearly erroneous,
nor are they an abuse of discretion or contrary to law. This
Court has the authority to dismiss an action for
Plaintiff's failure to prosecute under Federal Rule of
Civil Procedure 41(b), and under its inherent authority to
dismiss the action sua sponte. See Link v.
Wabash Railroad, 370 U.S. 626, 630-31 (1962);
McCullough v Lynaugh, 835 F.2d 1126, 1127 (5th Cir.
1988). The Court must be able to clear its calendars of cases
that remain dormant because of the inaction or dilatoriness
of the parties seeking relief, so as to achieve the orderly
and expeditious disposition of cases. Such a sanction is
necessary in order to prevent undue delays in the disposition
of pending cases and to avoid congestion in the calendars of
the Court. See Link, 370 U.S. at 629-30.
did not comply with the Orders entered by the Magistrate
Judge even after being warned that failure to do so might
result in the dismissal of his lawsuit. Order  at 2; Order
 at 2. Plaintiff has filed nothing in this case since
January 6, 2016. Such inaction represents a clear record of
delay or contumacious conduct by Plaintiff. It is apparent to
the Court that Plaintiff no longer wishes to pursue his case.
Dismissal without prejudice is warranted.
reasons stated herein, the Magistrate Judge's Report and
Recommendation  will be adopted as the finding of this
Court, and ...