United States District Court, S.D. Mississippi, Southern Division
JAMES M. GARDNER PLAINTIFF
MARSHAL TURNER et al. DEFENDANTS
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND
RECOMMENDATION  AND DISMISSING PLAINTIFF'S COMPLAINT
SULEYMAN OZERDEN, UNITED STATES DISTRICT JUDGE.
matter comes before the Court on the Report and
Recommendation  of United States Magistrate Judge John C.
Gargiulo, entered on April 26, 2018. Plaintiff James M.
Gardner (“Gardner”) filed a pro se Complaint
under 42 U.S.C. § 1983 in this Court claiming that
Defendants violated his constitutional rights while he was in
the custody of the Mississippi Department of Corrections
(“MDOC”). After Gardner was released from
imprisonment, Gardner failed to apprise the Court of his
current address. The Magistrate Judge recommended that this
case be dismissed for Gardner's failure to prosecute and
abide by numerous orders of the Court. After due
consideration of the Report and Recommendation , the
record, and relevant legal authority, the Court finds that
the Report and Recommendation should be adopted as the
finding of this Court, and that Gardner's Complaint
should be dismissed without prejudice.
3, 2017, Gardner filed a pro pleading entitled Prisoner's
Complaint  Challenging Conditions of Confinement against
numerous Defendants, including the wardens, correctional
officers, and medical staff of the South Mississippi
Correctional Institution (“SMCI”). Gardner
alleged that he was an inmate in the custody of the MDOC
housed at SMCI. The Complaint claimed that he was repeatedly
assaulted by correctional officers and denied medical care.
numerous Orders, the Magistrate Judge explicitly warned
Gardner that it was his responsibility to prosecute this
case, and that failure to comply with any orders of the Court
or to advise the Court of a change of address would be deemed
a purposeful delay and contumacious act that may result in
dismissal of his case. Orders [3, 4, 6, 7, 11, 17, 20, 29].
April 3, 2018, the Magistrate Judge issued an Order  for
Plaintiff to Show Cause, noting that Gardner had been
released from prison, but had not provided the Court with a
forwarding address. Order  at 1. The Magistrate Judge
ordered Gardner to show cause why this suit should not be
dismissed for failure to prosecute and to obey the
Court's orders requiring him to keep the Court apprised
of his current address. Id. at 2. A copy of the
Order to Show Cause was mailed to Gardner at his address of
record via certified mail, return receipt requested. However,
this mail was returned with a note on the envelope stating,
“Expiration/Prob 2/6/2018.” Envelope .
April 26, 2018, the Magistrate Judge entered a Report and
Recommendation that Gardner's suit be dismissed for
failure to prosecute and abide by orders of the Court. R.
& R. . The Magistrate Judge stated that Gardner was
informed on numerous occasions that his failure to advise the
Court of a change of address or failure to timely comply with
a Court order could result in dismissal of his case.
Id. at 2. The Magistrate Judge further noted that an
Order to Show Cause was sent to Gardner based on information
from MDOC's website which indicated Gardner had been
released from MDOC custody. As such, the Order to Show Cause
could not be delivered to Gardner's address of record and
was returned to the Court. Id. at 1. The Magistrate
Judge recommended that Gardner's claims be dismissed for
failure to prosecute and to abide by numerous Court orders.
Id. at 3.
Report and Recommendation advised Gardner that he had
fourteen days to file any objections, otherwise, he would be
barred, except upon grounds of plain error, from attacking on
appeal any proposed factual finding or legal conclusion
adopted by the Court to which he did not object. Id.
at 3-4. A copy of the Report and Recommendation was mailed to
Gardner at his address of record on April 26, 2018, however,
the mail was returned as undeliverable. Envelope . To
date, Gardner has not objected to the Report and
Recommendation, and the time for doing so has passed.
no party has objected to a magistrate judge's proposed
findings of fact and recommendation, the Court need not
conduct a de novo review of it. 28 U.S.C. §
636(b)(1) (“A judge of the court shall make a de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection is
made.”). In such cases, the Court applies the
“clearly erroneous, abuse of discretion and contrary to
law” standard of review. United States v.
Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989).
district court may dismiss an action for failure of a
plaintiff to prosecute or to comply with any order of
court” under Federal Rule of Civil Procedure 41(b).
McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir.
1988). “The court possesses the inherent authority to
dismiss the action sua sponte, without motion by a
defendant.” Id. 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 v. Wabash Railroad, 370 U.S. 626, 630
(1962). 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 630-31.
for failure to prosecute and comply with court orders are
appropriate 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