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 Magistrate Judge Linda R.
Anderson's Report and Recommendation (docket
entry 29), to which no objections were filed by the
plaintiff. Having carefully reviewed the Report and
Recommendation, and applicable statutory and case law, the
Court finds that plaintiff's case should be dismissed
pursuant to Federal Rule of Civil Procedure 41(b) because of
the plaintiff's failure to prosecute or comply with
orders of the Court.
April 21, 2017, Thomas Phillip Green (“Green”)
filed a complaint while incarcerated at the East Mississippi
Correctional Facility (“EMCF”). (docket entry 1).
By Order of July 5, 2017, Green was granted permission to
proceed in forma pauperis. (docket entry 6). The
Court scheduled an omnibus hearing that was held on February
14, 2018. (docket entry 25). A writ of habeas corpus ad
testificandum was issued to the Warden at the EMCF for
Green to be transported for the hearing. (docket entry 26).
The Order setting the hearing was sent to Green, but returned
to the Court by the United States Post Office as
undeliverable. (docket entry 27).
February 14, 2017, defense counsel Matthew Walton,
representing all defendants, appeared at the omnibus hearing
and waited for plaintiff to appear. Green did not attend the
hearing, and did not contact the Court to request a
continuance or explain a conflict with the setting. After he
failed to appear at the hearing, the defendants made an
ore tenus motion to dismiss the Complaint. Green was
notified of the hearing at the address he provided to the
Court at EMCF, but the Order was returned as undeliverable.
The Mississippi Department of Corrections website did not
show that he was still in its custody, and he has not
provided the Court with a new address. The Court has no other
way of contacting him.
February 16, 2018, Magistrate Judge Anderson filed her Report
and Recommendation. She opines that the plaintiff failed to
abide by the orders of the Court when he failed to attend the
scheduled hearing. The defendants have incurred unnecessary
attorneys' fees and costs because of plaintiff's
failure to attend the scheduled hearing or contact the Court
after his release. The actions of the plaintiff have also
prejudiced the rights of defendants to promptly and fully
defend the claims made against them.
plaintiff must be willing to prosecute his case in accordance
with the rules of the Court. Rule 41(b) of the Federal Rules
of Civil Procedure provides as follows:
(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 one for lack of
jurisdiction, improper venue, or failure to join a party
under Rule 19 -- 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 courts' power to
dismiss complaints pursuant to Rule 41(b) “is necessary
in order to prevent undue delays in the disposition of
pending cases and to . . . clear their calendars of cases
that have remained 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 629-31; see also
Lopez v. Arkansas County Indep. Sch. Dist., 570 F.2d
541, 544 (5th Cir. 1978).
plaintiff has changed his address, and did not receive the
notice of 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. Plaintiff was advised of
his responsibility to prosecute his claims and warned that
his “[f]ailure to advise the Court of a change of
address or failure to comply with any order of the Court will
be deemed as a purposeful delay and contumacious act . . .
and may result in the dismissal of this case.” (docket
entry 7 and 13). Whether or not a plaintiff is pro
se, or incarcerated, he has an obligation to inform the
Court of any address changes. “Every attorney and every
litigant proceeding without 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).
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)). Although he has not formally
dismissed his complaint, Green has obviously lost interest in
pursuing this lawsuit after his release from the EMCF.
Green's failure to prosecute this case is the type of
inaction that warrants Rule 41(b) dismissal, and is necessary
in order to officially conclude the litigation against
Report and Recommendation, Magistrate Judge Anderson
recommends that this matter be DISMISSED without prejudice
pursuant to Rule 41(b).
COURT HEREBY ADOPTS the Report and Recommendation of
Magistrate Judge Anderson (docket entry 29)
as the findings and conclusions of this Court, and dismisses
this matter without prejudice.
judgment shall be entered in accordance with Rule 58 of the