United States District Court, S.D. Mississippi, Southern Division
ORDER OF DISMISSAL WITHOUT PREJUDICE
GUIROLA, JR. CHIEF U.S. DISTRICT JUDGE
matter is before the Court sua sponte for consideration of
dismissal. After consideration of the record in this case and
relevant legal authority, and for the reasons discussed
below, the Court finds that this civil action should be
dismissed without prejudice.
Plaintiff Joel Tirey (“Plaintiff”) initiated this
action pursuant to 42 U.S.C. § 1983 on November 3, 2016.
Petitioner was an inmate of the Harrison County Adult
Detention Center, Gulfport, Mississippi, when he filed the
instant civil action. (Compl. 1, ECF No. 1). Plaintiff filed
a Notice of Change of Address  on November 8, 2016.
to Plaintiff's Notice of Change of Address , the
Magistrate Judge entered an Order on November 4, 2016, which
advised Plaintiff of certain provisions of the Prison
Litigation Reform Act, Title 28, United States Code, Section
1915 and Section 1932, and Section 47-5-138 of the
Mississippi Code of 1972, for Plaintiff's consideration
in determining whether to proceed with this action. Order
. The Order required Plaintiff to file an Acknowledgment
of Receipt or a Notice of Voluntary Dismissal within 30 days.
Id. at 1-2. That Order  warned Plaintiff that his
failure to timely comply with the Orders or his failure to
keep the Court informed of his current address could lead to
the dismissal of his case. A copy of that Order  was
subsequently mailed to Plaintiff at his new address on
November 15, 2016. Plaintiff did not file the required
documentation or otherwise respond to this Order.
December 19, 2016, the Magistrate Judge entered an Order to
Show Cause  requiring that Plaintiff, on or before January
11, 2017: (1) file a written response, showing cause why this
case should not be dismissed for Plaintiff's failure to
comply with the Court's prior Order ; and (2) comply
with the Court's prior Order  by filing the required
documentation. Order  at 1-2. Plaintiff was cautioned that
his “failure to advise the Court of a change of address
or failure to timely comply with any order of the Court . . .
may result in this cause being dismissed without
prejudice.” Id. at 2. The envelope 
containing the Order to Show Cause  was returned by the
Postal Service with a notation “inmate no longer at
this facility” and “return to sender - refused -
unable to forward.” Plaintiff did not respond to this
Order  or provide a change of address.
Plaintiff is proceeding pro se, he was provided one final
opportunity to comply with the Court's Orders. On January
26, 2017, the Magistrate Judge entered a Final Order to Show
Cause . That Order  directed that on or before February
10, 2017, Plaintiff: (1) file a written response, showing
cause why this case should not be dismissed for
Plaintiff's failure to comply with the Court's
previous Orders; and (2) comply with the Court's previous
Orders by filing the required documentation. Order  at 2.
Plaintiff was warned that his “failure to advise the
Court of a change of address or failure to timely comply with
any order of the Court will be deemed as a purposeful delay
and contumacious act by Plaintiff and will result in this
cause being dismissed without prejudice and without further
notice to Plaintiff.” Id. at 2. The envelope
 containing this Order was returned by the Postal Service
with a notation “inmate no longer at this
facility” and “return to sender, refused, unable
to forward.” Plaintiff did not respond to this Order or
provide a change of address.
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 have
remained dormant because of the inaction or dilatoriness of
the parties seeking relief . . . so as to achieve the orderly
and expeditious disposition of cases.” Link,
370 U.S. at 630-31. 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. Id. at 629-30.
did not comply with the Orders entered by the Magistrate
Judge even after being warned several times that failure to
do so would result in the dismissal of his case. Order  at
2; Order  at 2; Order  at 2. Plaintiff has not
responded to the Court's Orders or otherwise contacted
the Court since he filed his Notice of Change of Address 
on November 8, 2016. Such inaction presents a clear record of
delay or contumacious conduct by Plaintiff. It is apparent
that Plaintiff no longer wishes to pursue this lawsuit. As
the record demonstrates, lesser sanctions than dismissal have
not prompted “diligent prosecution, ” but instead
such efforts have proven futile. See Tello v.
Comm'r., 410 F.3d 743, 744 (5th Cir. 2005).
Dismissal without prejudice is warranted.
reasons stated herein, this civil action will be dismissed
THEREFORE, ORDERED AND ADJUDGED that this civil action is
DISMISSED WITHOUT PREJUDICE for failure to obey the
Court's Orders and to prosecute. A separate final
judgment will ...