United States District Court, S.D. Mississippi, Southern Division
SCOTT AND JENNIFER BERRY, individually and on behalf of the minor children C.W.B., R.L.C., C.C., A.A.C., and C.D.B. PLAINTIFFS
FEGEE SIMMS, individually and as agent for Mississippi Department of Human Services DEFENDANT
REPORT AND RECOMMENDATION THAT PLAINTIFFS'
REMAINING CLAIMS BE DISMISSED FOR FAILURE TO PROSECUTE AND
OBEY ORDERS OF THE COURT
C. GARGIULO UNITED STATES MAGISTRATE JUDGE
CAUSE IS BEFORE THE COURT for consideration of dismissal. The
undersigned recommends that the remaining claims in the
Complaint filed by Plaintiffs Scott and Jennifer Berry,
individually and on behalf of their minor children, be
dismissed for failure to prosecute and obey orders of the
a 42 U.S.C. § 1983 case arising out of alleged actions
of Mississippi Department of Human Services (MDHS) employees,
including Defendant Fegee Simms, who was sued in her official
and individual capacities. Simms was an MDHS caseworker
assigned to Plaintiffs' minor children after MDHS
received an anonymous allegation that Plaintiffs did not feed
their children. (ECF No. 1, at 1-2). In their Complaint, the
Berrys claim that MDHS failed to adequately hire, supervise,
train, and monitor Simms and other social workers and
investigators and that MDHS failed to respond to Simms'
purportedly inappropriate conduct.
January 4, 2018, the claims against MDHS were dismissed on
the basis of sovereign immunity because MDHS is an arm of the
State of Mississippi. (ECF No. 32, at 7). The claims against
Simms, in her official capacity, were also dismissed because
a suit against a state official in her official capacity is
not a suit against the official but rather is a suit against
the official's office, and “it is no different from
a suit against the State itself.” Id. at 5
(citing Will v. Michigan Dep't of State Police,
491 U.S. 58, 71 (1989)).
one month after the claims against MDHS and Simms, in her
official capacity, were dismissed, Plaintiffs' counsel
moved to withdraw as counsel for the Berrys. The Berrys
consented to the withdrawal of their counsel and filed signed
Joinders. (ECF Nos. 34, 35). The Motion to Withdraw as
Counsel was granted on March 6, 2018. (ECF No. 36). The Order
Granting Motion to Withdraw as Counsel provided that
“Plaintiffs are granted up to and including April 6,
2018, within which to either (1) employ private counsel and
have that counsel enter a written notice of appearance, or
(2) notify the Clerk of Court, in writing, that they will be
representing themselves.” Id. at 1. The Order
made clear to the Berrys that should they “fail to
either retain new counsel or notify the Clerk of Court that
they will be representing themselves, their claims will be
subject to dismissal.” Id.
date, new counsel has not entered an appearance on behalf of
the Berrys, nor have the Berrys notified the Clerk of Court
that they wish to represent themselves. The Case Management
Order set a settlement conference for April 12, 2018, at 1:30
p.m. The Clerk of Court mailed a reminder regarding the
settlement conference to the Berrys at their home address.
The settlement conference occurred, as scheduled. The Berrys
did not attend, nor did they inform the Court that they would
not attend. The Berrys have not filed any pleadings or
otherwise corresponded with the Court since their former
counsel withdrew on March 6, 2018.
Court has the authority to dismiss an action for a
plaintiff's failure to prosecute under Federal Rule of
Civil Procedure 41(b) and under its inherent authority to
dismiss an action sua sponte. See Link v. Wabash R.R.
Co., 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. 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
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 there is a clear pattern of
delay and contumacious conduct. The Berrys did not comply
with the Order Granting Motion to Withdraw as Counsel, which
required them to act by April 6, 2018. The Order warned the
Berrys that their claims were subject to dismissal if they
failed to retain new counsel or notify the Clerk of Court
that they would be representing themselves.
Case Management Order required the Berrys to attend the
settlement conference on April 12, 2018. The Clerk of Court
mailed a reminder regarding the settlement conference to the
Berrys at their home address. The Berrys failed to appear at
the settlement conference. The Berrys have not filed any
pleadings or otherwise corresponded with the Court since
their former counsel withdrew on March 6, 2018.
Berrys are apparently no longer interested in pursuing the
remaining claims in this suit. There is no reason to conclude
that lesser sanctions than dismissal would prompt diligent
prosecution. The undersigned recommends that the Berrys'
remaining claims be dismissed under Federal Rule of Civil