United States District Court, S.D. Mississippi, Southern Division
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS'
MOTIONS AND DISMISSING CASE
C. GARGIULO UNITED STATES MAGISTRATE JUDGE.
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.
12, 2015, Plaintiff Donald Edward Tomlin, while incarcerated
at the Jackson County Adult Detention Center
(“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,  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.
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
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.
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).
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.
Failure to Prosecute
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.
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).
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
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 ...