United States District Court, S.D. Mississippi, Southern Division
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND
RECOMMENDATION  AND DISMISSING PLAINTIFF'S CASE WITH
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 in this case on January 3, 2019. The
Magistrate Judge recommended that Plaintiff's suit be
dismissed as an adjudication on the merits for failure to
prosecute and abide by orders of the Court. Plaintiff has not
submitted any objections to the Report and Recommendation
, and the time for doing so has passed. After due
consideration of the Report and Recommendation ,
Plaintiff's Complaint, the record, and relevant legal
authority, the Court finds that the Magistrate Judge's
Report and Recommendation should be adopted as the Order of
the Court, and this case will be dismissed with prejudice.
Julius Logan (“Plaintiff”), acting pro se and
requesting leave to proceed in forma pauperis, filed
his Complaint  in this matter on February 9, 2017. The
Complaint lodged claims against numerous defendants that they
acted with deliberate indifference to his medical needs in
violation of 42 U.S.C. § 1983 when they assigned him to
a top bunk in his cell following a corrective hernia
surgery. Compl.  at 1-2. At the time, Plaintiff
was an inmate at the South Mississippi Correctional
Institution in Leakesville, Mississippi. Id.
Magistrate Judge entered an Order  requiring Plaintiff to
complete a questionnaire clarifying his claims. Order .
The Order  warned Plaintiff that failure to “advise
this Court of a change of address or failure to timely comply
with any order of this Court will result in this cause being
dismissed.” Id. at 1. In response to the
Magistrate Judge's Questionnaire , Plaintiff
clarified that he sought to sue Dr. Ronald Woodall, Mike
Hatten, Unknown Hodge, Unknown Smith, and Jane Doe. Pl.'s
Resp. ; Order . Plaintiff asserted that despite a
physician's order that he be assigned to a low bunk, on
January 14, 2017, he fell from the top bunk which caused him
to break his nose, tooth, and some facial bones. Pl.'s
Resp. ; Attach. . Plaintiff also alleged that
Defendants did not protect him from attacks of other inmates.
Pl.'s Resp. ; Attach. .
has not communicated with the Court since December 11, 2017,
when he submitted a Letter  clarifying his claims. On
September 20, 2018, the Magistrate Judge issued a Writ of
Habeas Corpus ad Testificandum  for Plaintiff to appear
at an Omnibus Hearing scheduled for November 28, 2018. Order
. The Magistrate Judge again warned that “a failure
to prosecute, obey orders of the Court, or keep the Court
informed of a current address may result in dismissal.”
Id. After a change in the time of the hearing, Order
, the Magistrate Judge issued a second Writ . The
Orders   and corresponding Writs   were
mailed to Plaintiff at his address of record and were
subsequently returned as undeliverable. Staff Note, Sept. 20,
2018; Staff Note, Sept. 25, 2018; Mail Returned Undeliverable
did not appear at the November 28, 2018 hearing. Minute
Entry, Nov. 28, 2018. The Magistrate Judge issued an Order
 to Show Cause the same day, requiring that Plaintiff
show cause by December 12, 2018, why the case should not be
dismissed for failure to appear at the Omnibus Hearing. Order
 to Show Cause. The Order warned Plaintiff that the Court
may dismiss his suit for failure to prosecute or obey Court
orders under Federal Rule of Civil Procedure 41(b).
Id. This Order  was mailed to Plaintiff's
address of record but was returned as undeliverable on
December 6, 2018. Staff Note, Nov. 28, 2018; Mail Returned
January 3, 2019, the Magistrate Judge entered his Report and
Recommendation , recommending that the Court dismiss
Plaintiff's suit. R. & R.  at 4-5. The Report and
Recommendation  was mailed to Plaintiff's address of
record but was also returned as undeliverable on January 16,
2019. Plaintiff has not submitted any objections to the
Report and Recommendation , and the time for doing so has
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 and 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).
has not communicated with the Court in over one year.
Plaintiff failed to appear at the Omnibus Hearing, respond to
Orders  , or show cause why his action should not be
dismissed, despite multiple warnings that failure to respond
or alert the Court of a change of address or to comply with a
Court order could result in dismissal. See Orders
        . The Court is of
the view that there is a clear record of contumacious conduct
and delay, and that lesser sanctions are futile.
conducted the required review, the Court concludes that the
Magistrate Judge thoroughly considered all issues and that
the Magistrate Judge's Report and Recommendation is
neither clearly erroneous nor contrary to law. The Report and
Recommendation should be adopted as the opinion of the Court.
Court finds that the Magistrate Judge properly recommended
that Plaintiff Julius Logan's suit be dismissed. The
Report and Recommendation ...