United States District Court, S.D. Mississippi, Southern Division
REPORT AND RECOMMENDATION THAT PLAINTIFF'S SUIT
BE DISMISSED FOR FAILURE TO PROSECUTE AND ABIDE BY ORDERS OF
C. GARGIULO UNITED STATES MAGISTRATE JUDGE.
THE COURT is a prisoner suit filed pursuant to 42 U.S.C.
§ 1983 by Plaintiff Julius Logan, who is proceeding
pro se and in forma pauperis. Plaintiff
filed this suit while in the custody of the Mississippi
Department of Corrections as a postconviction inmate. The
undersigned Magistrate Judge recommends that Plaintiff's
claims be dismissed as an adjudication on the merits under
Federal Rule of Civil Procedure 41(b) due to Plaintiff's
failure to prosecute and abide by numerous Orders of the
one of two related 42 U.S.C. § 1983, Eighth Amendment
suits Plaintiff filed in this Court within approximately a
month of one another while Plaintiff was housed at the South
Mississippi Correctional Institution (SMCI) in Leakesville,
Mississippi. Plaintiff filed the first suit, Logan v.
Fisher, 3:17-cv-32-JCG (S.D.Miss.) (“Logan
1”), on January 17, 2017, and this suit on February 9,
Logan 1, Plaintiff primarily complained about the quality of
outpatient corrective hernia surgery he received on October
5, 2016, while housed at SMCI, alleging that Defendants were
deliberately indifferent to his medical needs. On March 19,
2018, Plaintiff's first suit was dismissed on summary
judgment because the record evidence established that
Plaintiff did not receive constitutionally deficient medical
care. (ECF No. 53, at 12 in Logan 1, 3:17-cv-32-JCG).
suit, Plaintiff primarily alleges that Defendants were
deliberately indifferent because Plaintiff was assigned to a
top bunk following his corrective hernia surgery. (ECF Nos.
1, 17). Plaintiff maintains that he fell from a top bunk on
January 14, 2017, four days after a physician ordered that he
be assigned to a low bunk. According to Plaintiff, the fall
caused him to break his nose, tooth, and some facial bones.
Plaintiff also alleges in this suit that Defendants failed to
protect him from attacks by other inmates.
omnibus hearing was scheduled and properly noticed for
November 28, 2018. (ECF Nos. 43, 44). The Orders setting the
omnibus hearing for November 28, 2018, were mailed to
Plaintiff at his address of record but were returned as
undeliverable and unable to forward. (ECF Nos. 45, 46).
Plaintiff failed to appear at the November 28, 2018, omnibus
hearing, and no one appeared on his behalf.
Order for Plaintiff to Show Cause immediately issued,
requiring Plaintiff to file a response in writing on or
before December 12, 2018, showing cause why this case should
not be dismissed due to Plaintiff's failure to appear at
the omnibus hearing. (ECF No. 51). Plaintiff was specifically
warned that failure to timely comply with the Order to Show
Cause would result in a recommendation to the District Jude
that this case be dismissed pursuant to Federal Rule of Civil
Procedure 41(b). The Order for Plaintiff to Show Cause was
mailed to Plaintiff at his address of record but was returned
as undeliverable and unable to forward. (ECF No. 52).
Rule of Civil Procedure 41 confers upon a district court the
authority to dismiss an action sua sponte for
failure to prosecute or for failure to comply with a court
order. McCullough v. Lynaugh, 835 F.2d 1126, 1127
(5th Cir. 1988) (citing Link v. Wabash R.R. Co., 370
U.S. 626, 630-31 (1962)). “This authority flows from
the court's inherent power to control its docket and
prevent undue delays in the disposition of pending
cases.” Boudwin v. Graystone Ins. Co., 756
F.2d 399, 401 (5th Cir. 1985). A court must be able to clear
its calendar of cases that remain dormant because of the
inaction or dilatoriness of the parties seeking relief in
order to achieve the orderly and expeditious disposition of
cases. See Link, 370 U.S. at 630-31.
general rule, dismissals under Federal Rule of Civil
Procedure 41(b) are permitted only 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, 975 F.2d 1188, 1191 (5th Cir.
1992). A dismissal under 41(b) “operates as an
adjudication on the merits” unless the dismissal order
states otherwise. Fed.R.Civ.P. 41(b).
review, the Court finds a clear record of delay and
contumacious conduct by Plaintiff. Plaintiff last
corresponded with the Court through a letter filed on
December 11, 2017. (ECF No. 37). Mail directed to Plaintiff
at his address of record has been returned as undeliverable
and unable to forward since October 2, 2018. (ECF No. 45, 46,
52). Plaintiff failed to appear at the duly noticed omnibus
hearing held on November 28, 2018, and no one appeared on
Plaintiff's behalf. Plaintiff did not comply with the
Court's November 28, 2018, Order for Plaintiff to Show
Cause. (ECF No. 51).
was informed repeatedly that failure to keep the Court
apprised of his current address would be deemed a purposeful
and contumacious act that could result in dismissal of his
claims. (ECF Nos. 3, 4, 12, 16, 20, 23, 41). Plaintiff was
advised of his responsibility to prosecute this case and
warned repeatedly that failure to timely comply with a Court
order subjected his case to dismissal. (ECF Nos. 4, 12, 16,
20, 23, 51).
apparent from Plaintiff's inaction that he no longer
wishes to pursue this lawsuit. Lesser sanctions than
dismissal would not prompt diligent prosecution and have
proven to be futile. Based upon the facts and circumstances
here, the undersigned recommends that Plaintiff's claims
be dismissed as an adjudication on the merits under Federal