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Tomlin v. Health Assurance, LLC

United States District Court, S.D. Mississippi, Southern Division

July 20, 2017




         BEFORE THE COURT is Defendant Kristi Bourn's Motion to Dismiss (ECF No. 46) and Defendant Jackson County, Mississippi's Motion for Summary Judgment (ECF No. 49). Plaintiff Donald Edward Tomlin has not responded to the Motions, despite twice being ordered to do so. Having reviewed the submissions of the parties, the record, and relevant law, the Court finds that Bourn's Motion to Dismiss should be GRANTED. All claims against all Defendants are appropriate for dismissal pursuant to Federal Rule of Civil Procedure 41(b) for Plaintiff's failure to prosecute. Jackson County's Motion for Summary Judgment should be GRANTED because Plaintiff has failed to state a claim and further demonstrated no grounds for municipal liability.

         I. BACKGROUND

         On July 12, 2015, Plaintiff Donald Edward Tomlin, while incarcerated at the Jackson County Adult Detention Center[1] (“JDADC”), filed a Complaint in this Court alleging that he did not receive adequate medical treatment. (ECF No. 1, at 4). The Court ordered Tomlin to clarify his claims. (ECF No. 6). Tomlin clarified that he was suing Defendants Health Assurance, LLC, Nurse Kristi Bourn, and Dr. Wayne Grayson, [2] for a lack of adequate medical care because he had a boil on his ear that he believes was not properly treated. (ECF No. 7, at 1, 2). Tomlin stated that he was suing Jackson County for a “policy or custom” of not treating prisoners unless they have “life-threatening injuries.” Id. Tomlin further explained his claims at an omnibus hearing held on September 20, 2016.[3]

         Defendant Kristi Bourn filed a Motion to Dismiss on January 17, 2017, asserting that this case should be dismissed for failure to prosecute because Tomlin has failed to keep the court appraised of his current address. (ECF No. 46). With the Motion, Defendant Bourn provided proof that she tried multiple times to deliver documents to Tomlin, and each letter was returned. Id. at 1. Tomlin later filed a notice indicating that he had been released from JCADC and now resided in Pascagoula, Mississippi. He provided a residence address, which indicates that he is no longer incarcerated.

         On February 16, 2017, Defendant Jackson County filed a Motion for Summary Judgment, and supporting memo, arguing that Tomlin has not provided evidence supporting municipal liability under §1983, nor complied with the Mississippi Tort Claims Act's notice provision with respect to any state law claims. (ECF. Nos. 49, 50). Tomlin, to date, has failed to respond to either of Defendants' Motions.

         On February 16, 2017, Defendant Health Assurance filed a Notice of Bankruptcy. (ECF No. 51). On February 22, 2017, the Court issued an Order Staying Proceedings against Health Assurance until further order of the bankruptcy court. (ECF No. 55).

         The Court then entered two Orders for Tomlin to show cause. (ECF Nos. 56, 59). The first Order, issued on February 22, 2017, gave Tomlin until March 15, 2017, to respond to Defendants' Motion to Dismiss and Motion for Summary Judgment. The second Order, issued May 4, 2017, gave Tomlin until May 25, 2017, to respond to both of Defendants' Motions. Both Orders expressly warned Tomlin that failure to respond could lead to dismissal of his case for failure to prosecute under Federal Rule of Civil Procedure 41(b). Tomlin was also warned that failure to advise the Court of a change of address subjected his case to dismissal. (ECF No. 59). The second Order (ECF No. 59) was sent by certified mail to Tomlin's last known address and signed for by “Myrtle Tomlin.” (ECF No. 60). Despite proof that the Order to Show Cause was delivered, Tomlin has still failed to respond to Defendants' Motions, and he has not attempted to demonstrate why this case should not be dismissed for his failure to prosecute.


         A. Failure to Prosecute

         Pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, a district court may dismiss a lawsuit based on the failure of a plaintiff to prosecute his claims or comply with any order of the court. Under this rule, “[t]he court possesses the inherent authority to dismiss [an] action sua sponte, without motion by a defendant.” McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962)). 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. Link, 370 U.S. at 630. 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.

         As a general rule, dismissals under Rule 41(b) are permitted only when “(1) there is a clear record of delay or contumacious conduct by the plaintiff, and (2) the district court has expressly determined that lesser sanctions would not prompt diligent prosecution, or the record shows that the district court employed lesser sanctions that proved to be futile.” Berry v. CIGNA/RSI, 975 F.2d 1188, 1191 (5th Cir. 1992).

         On review, the Court finds that Tomlin's conduct shows a clear pattern of delay and contumacious conduct. The record shows that Tomlin has failed or refused to respond to Bourn's Motion to Dismiss and Jackson County's Motion for Summary Judgment, despite being expressly ordered to do so on two separate occasions. Tomlin was twice warned that his failure to respond subjected his suit to dismissal under Rule 41(b) for failure to prosecute. Due to Tomlin's continued disregard for this Court's orders, it is clear that lesser sanctions than dismissal would not prompt diligent prosecution.

         Because Tomlin is proceeding pro se, the failure or refusal to respond to the Court's Orders and Defendants' Motions can only be attributed to Tomlin himself. Tomlin has been released from JCADC ...

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