United States District Court, S.D. Mississippi, Northern Division
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
R. ANDERSON UNITED STATES MAGISTRATE JUDGE.
Court set this case for a Spears or omnibus hearing
by Order  filed on February 8, 2018, scheduling the
hearing for March 27, 2018, before the undersigned Magistrate
Judge. Neither party requested a continuance.
Richard Earl Barker failed to appear at the March 27th
hearing. Defense attorneys Rebecca Cowan and Scott Gilbert
appeared for the hearing and waited for over an hour for
Barker to appear. Barker did not attend the hearing or
contact the Court to request a continuance. He was notified
of this hearing at the mailing address that he provided to
the Court, being 154 Roosevelt Hudson Drive, Yazoo City,
Mississippi 39194. The notice of the hearing was sent to that
address and was returned by the United States Postal Service
 as undeliverable. Defense counsel informed the Court
that Barker was no longer housed at the Yazoo County Jail and
they had no other address for him. The Mississippi Department
of Corrections [MDOC] website confirms that Barker is no
longer an MDOC inmate.
filed a Motion for Partial Summary Judgment  on March 8,
2018. They filed a Notice of Returned Mail  confirming
that their motion and memoranda sent to Barker at the Yazoo
City address were returned as undeliverable. At the hearing,
counsel for Defendants made an ore tenus motion to
dismiss the Complaint due to Barker's failure to
filed this case, and it was his responsibility to prosecute
his claims. He was advised of that responsibility by the
Court in that Order  filed on June 16, 2017, and was
warned that his “[f]ailure to comply with any order of
this Court and/or failure to advise this Court of a change of
address will be deemed as a purposeful delay and contumacious
act and may result in the dismissal of this case.” .
His failure to attend the scheduled hearing, or to contact
the Court after his release, has caused Defendants to incur
unnecessary attorneys' fees and costs.
has failed to abide by the orders of this Court due to his
failure to attend the hearing or to keep the Court advised of
his current address. He must be willing to prosecute his case
in accordance with the rules of the Court.
41(b) of the Federal Rules of Civil Procedure provides as
(b) Involuntary Dismissal; Effect. If the
plaintiff fails to prosecute or to comply with these
rules or a court order, a defendant may move to dismiss
the action or any claim against it. Unless the dismissal
order states otherwise, a dismissal under this subdivision
(b) and any dismissal not under this rule ---- except ...
---- operates as an adjudication on the merits.
Court has the authority to dismiss an action for failure of a
plaintiff to prosecute or to comply with any order of the
Court both under Fed.R.Civ.P. 41(b) and under its inherent
authority. See McCullough v. Lynaugh, 835 F.2d 1126
(5th Cir. 1988); Link v. Wabash R.R. Co., 370 U.S.
626, 630-631 (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.
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. Link, supra,
370 U.S. at 630. The actions of Barker also prejudice the
rights of Defendants to promptly and fully defend the claims
made against them.
or not a plaintiff is pro se, or incarcerated, he
still has an obligation to inform the Court of any address
changes. “Every attorney and every litigant proceeding
without legal counsel has a continuing obligation to notify
the clerk of court of address changes.” See Local
Rule 11(a); Wade v. Farmers Ins. Group, No.
01-20805, 2002 WL 1868133, at *1, n. 12 (5th Cir. June 26,
2002) (on appeal from district court's denial of a motion
for reconsideration of dismissal for failure to
prosecute---even incarcerated litigants must inform the court
of address changes). Barker obviously changed his address
after his release, and did not receive the notice of the
hearing at the address he provided the Clerk. His failure to
advise the Court of that change prevents the Court from
moving this case forward or communicating with him in any
dismissal of a plaintiff's lawsuit for failing to comply
with a district court's order is warranted where
“[a] clear record of delay or contumacious conduct by
plaintiff exists.” Day v. Allstate Ins. Co.,
788 F.2d 1110 (5th Cir. 2008) (quoting Anthony v. Marion
County General Hospital, 617 F.2d 1164, 1167 (5th Cir.
1980)). The record in Plaintiff's case supports such a
finding. Barker may have lost interest in pursuing this
lawsuit after his release from prison, although he has not
formally dismissed his complaint. The sanction of dismissal
is necessary in order to officially conclude the litigation
above reasons, the undersigned Magistrate Judge recommends
that this cause of action be dismissed pursuant to
Fed.R.Civ.P. 41(b), without prejudice. Final Judgment should
be entered. Defendants' Motion for Partial Summary
Judgment  should be dismissed without prejudice, as the
dismissal will not be based upon the merits of Barker's
parties are hereby notified that failure to file written
objections to the proposed findings, conclusions, and
recommendations contained within this report and
recommendation within fourteen (14) days after being served
with a copy shall bar that party, except upon grounds of
plain error, from attacking on appeal the unobjected-to
proposed factual findings and legal conclusions accepted by
the District Court. 28 ...