United States District Court, S.D. Mississippi, Northern Division
ORDER ADOPTING REPORT AND RECOMMENDATION
BRAMLETTE UNITED STATES DISTRICT JUDGE.
cause is before the Court on a Report and Recommendation of
Magistrate Judge Linda R. Anderson (docket entry
29). This case was set for a Spears hearing
or omnibus hearing to be held on February 15, 2018. A writ of
habeas corpus ad testificandum was issued to the Warden of
the East Mississippi Correctional Facility
(“EMCF”) for the plaintiff, James Boyd
(“Boyd”), to be transported to the hearing. The
Order setting the hearing was returned to the Court by the
United States Post Office as undeliverable.
January 12, 2018, a United States Deputy Marshal called to
inform the Court that EMCF officials had notified him that
Boyd had been released. Also on January 12, 2018, a copy of
the Order setting the hearing was then mailed to the only
address for Boyd in EMCF's possession (4319 Highway 12
East, Steens, Mississippi 39766).
plaintiff failed to appear at the February 15 hearing, and
did not contact the Court to request a continuance or explain
his absence. The notice of hearing has not been returned by
the United States Postal Service. The Court presumes that the
plaintiff received the notice but chose not to attend.
Judge Anderson advised Boyd of his responsibility to
prosecute his claims in Court Orders (docket entries 11 and
16), and he was warned that failure to advise the Court of a
change of address, or failure to comply with any Order of the
Court, would be deemed as purposeful delay and a contumacious
act, and could result in the dismissal of his case (docket
addition, Boyd's failure to attend the scheduled hearing,
and his failure to contact the Court after his release, has
caused the defendants to incur unnecessary attorneys'
fees and costs.
plaintiff has failed to abide by the Orders of the Court, due
to his failure to attend the hearing. Rule 41(b) of the
Federal Rules of Civil Procedure provides:
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 ... operates as an adjudication on the merits.
Judge Anderson points out that this 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, 630-31 (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. 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 the plaintiff also prejudice the rights of the 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, 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). If the plaintiff has changed his address, and did
not receive the notice of the hearing at the address he
provided the Clerk, then his failure to advise the Court of
that change prevents the Court from moving this case forward.
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 this case clearly
supports such a finding. The plaintiff obviously lost
interest in pursuing his 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 against the defendants.
Court agrees with the Magistrate Judge's Report and
Recommendation that Boyd's action be dismissed pursuant
to Fed.R.Civ.P. 41(b) without prejudice.
IT IS HEREBY ORDERED that Magistrate Judge Linda R.
Anderson's Report and Recommendation (docket
entry 29) is ADOPTED as the findings and conclusions
of this Court; FURTHER ORDERED that plaintiff James