United States District Court, S.D. Mississippi, Southern Division
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND
RECOMMENDATION  AND DISMISSING PLAINTIFF'S CLAIM
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 May 14, 2018. Plaintiff Lenzy Benton
filed a pro se Complaint in this Court claiming that the
Federal Bureau of Prisons (“BOP”) failed to
provide him reasonable and timely medical care during his
incarceration at the Federal Correctional Institution I in
Oakdale, Louisiana. The Magistrate Judge recommended that
this case be dismissed for Benton's failure to prosecute
and obey 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 Benton's Complaint should be dismissed
September 11, 2017, Benton filed a Complaint  in this
Court against the United States under the Federal Tort Claims
Act (“FTCA”), 28 U.S.C. § 2671, et
seq. Benton alleged that he was previously a
prisoner in the custody of the BOP. Compl.  at 1. Benton
allegedly suffered from an inflamed and ulcerated colon, but
was delayed in seeing a medical professional and never
received access to a medical specialist to treat his
condition. Id. Benton claims that BOP failed to
provide him reasonable and timely medical care. Id.
On March 22, 2018, the United States filed a Motion  to
Dismiss or in the Alternative, Motion for Summary Judgment.
March 27, 2018, the Court entered a Rule 16(a) Initial Order
, setting an in-person case management conference
(“CMC”) for May 14, 2018. Order  at 1. The
Order instructed the parties to confer no later than
twenty-one days prior to the CMC, and also to submit a
proposed case management order and a confidential memorandum
by May 7, 2018. Id. The confidential memorandum was
to include a candid appraisal of the parties' respective
positions, including possible settlement figures.
Id. The Court warned that the failure of any party
to submit the proposed case management order and confidential
memoranda may result in imposition of sanctions. Id.
at 1-2. The Order was mailed to Benton's address of
record and was delivered at some time before April 3, 2018.
Acknowledgement of Receipt . The CMC was held on May 14,
2018, however, Benton did not appear, nor did he comply with
any of the other instructions in the Court's Initial
14, 2018, the Magistrate Judge issued a Report and
Recommendation, recommending the dismissal of Benton's
suit for failure to prosecute and to obey orders of the
Court. The Magistrate Judge found that there was a clear
pattern of delay and contumacious conduct by Benton. R. &
R.  at 3. The Magistrate Judge noted that Benton did not
comply with the Rule 16(a) Initial Order's requirements
to confer with defense counsel twenty-one days prior to the
CMC, did not submit a proposed case management order at least
seven days prior to the conference, and did not submit a
confidential memorandum. Id. at 3-4. Benton did not
appear at the in-person CMC or even notify the Court that he
would not attend. Id. at 4. At the time the
conference was set to commence, defense counsel informed the
Court that they had attempted to contact Benton via his
cellphone, but the phone was set to not take calls.
Id. at 2.
the Magistrate Judge concluded that Benton was apparently no
longer interested in pursuing his case and that lesser
sanctions other than dismissal would not prompt diligent
prosecution. Id. at 4. The Magistrate Judge
recommended that Benton's suit be dismissed under Federal
Rule of Civil Procedure 41(b) for failure to prosecute and to
obey the Court's orders. Id.
of the Report and Recommendation was mailed to Benton and
delivered to his address on May 16, 2018. USPS Tracking .
To date, Benton 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).
Analysis “A 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
to be futile.” Berry v.CIGNA/RSI-CIGNA, 975
F.2d 1188, 1191 (5th Cir. 1992) (footnote omitted).
the Magistrate Judge did not clearly err in finding a clear
record of delay and contumacious conduct by Benton. Benton
failed to respond to the United States' Motion to
Dismiss, and also failed to comply with numerous instructions
from the Court as directed in the Rule 16(a) Initial Order.
These instructions - to confer with opposing counsel, to
submit a proposed case management order that would set
pleading and discovery deadlines, and to submit a
confidential memorandum including a candid appraisal of the
parties' positions and settlement figures - are necessary
to achieve the orderly disposition of this case. Benton
failed to appear at the in-person CMC and did not inform ...