United States District Court, S.D. Mississippi, Northern Division
REPORT AND RECOMMENDATION
C. GARGIULO, UNITED STATES MAGISTRATE JUDGE
THE COURT is a prisoner suit filed pursuant to 42 U.S.C.
§ 1983 by Plaintiff Dwayne Wallace. Plaintiff filed this
suit pro se and in forma pauperis on June
19, 2018 while an inmate in the custody of the Central
Mississippi Correctional Facility in Pearl, Mississippi.
Plaintiff has failed to prosecute and obey the orders of the
Court; therefore, the undersigned recommends that the
Complaint be dismissed without prejudice.
filed suit against Defendants Doctor John Doe, Nurse Gilmore,
Correctional Officer John Doe, Doctor Unknown Waltzer, and
Paulette Franklin. He alleges that the Defendants were
deliberately indifferent to his medical needs as they denied
him treatment for an allergic reaction and do not provide him
with “suitable” medication for his high blood
pressure. He seeks monetary damages and asks the Court to
discipline the Defendants.
Court sent Requests for Waivers of Service (ECF Nos. 18, 19,
& 20) to Gilmore, Franklin, and Waltzer on August 16,
2018. The Court also informed the Plaintiff that John Doe
Defendants would not be served until he provided more
information and filed a motion seeking service (ECF No. 17).
Centurion of Mississippi, LLC, who is believed to be
Waltzer's and Gilmore's employer, filed a response to
the Request indicating that it was unable to identify a
Doctor Waltzer or a Nurse Gilmore (ECF No. 24). Thereafter,
the Court ordered Plaintiff to provide a response stating if
Waltzer was actually a nurse and if Gilmore was actually a
records clerk (ECF No. 26). Plaintiff's response was due
on or before October 17, 2018. However, on October 10, 2018,
Plaintiff filed his third Notice of Change of Address (ECF
No. 27; see also ECF Nos. 13 & 25). In light of
his changed address, the Court extended his deadline to
respond until November 1, 2018 (ECF No. 28).
did not file a response. On November 28, 2018, the Court
entered a third Order (ECF No. 30). Plaintiff was reminded
that he was responsible for providing the information
necessary to secure service upon the Defendants and that
failure to advise the Court of his current address or comply
with the Court's orders may result in dismissal. He was
ordered to clarify if Doctor John Doe is Defendant Waltzer;
if Waltzer is actually a nurse; if Defendant Gilmore is a
records clerk instead of a nurse; and if Correctional Officer
John Doe is Defendant Franklin. His response was due on or
before January 4, 2019. Again, Plaintiff failed to file a
response. The Court entered its final Order to Show Cause
(ECF No. 32) on February 26, 2019. Plaintiff was ordered to
respond on or before March 26, 2019, but he has not done so.
Court has the authority to dismiss an action for a
plaintiff's failure to prosecute under Federal Rule of
Civil Procedure 41(b) and under its inherent authority to
dismiss an action sua sponte. See Link v. Wabash R.R.
Co., 370 U.S. 626, 629-30 (1962); Larson v.
Scott, 157 F.3d 1030, 1031 (5th Cir. 1998);
McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir.
1988). 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, 370 U.S.
at 630. 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
629-30. As a 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. CIGNARSI-CIGNA, 975 F.2d 1188, 1191 (5th
review, the undersigned finds a clear record of delay and
contumacious conduct by Plaintiff. Plaintiff has not
responded to four different orders issued by this Court. He
has repeatedly been informed that his failure to abide by the
Court's orders or to inform the Court of a change in
address would be deemed a purposeful and contumacious act
that would result in this case being dismissed (ECF Nos. 3,
4, 7, 11, 12, 16, 17, 26, & 32). It is presumed that
Plaintiff is no longer interested in pursuing this case. He
has not filed a pleading or otherwise corresponded with the
Court since October 10, 2018. Lesser sanctions than dismissal
would not prompt diligent prosecution.
on the above analysis, the undersigned recommends that
Plaintiff's Complaint be dismissed without prejudice.
OF RIGHT TO APPEAL/OBJECT
to Local Uniform Civil Rule 72(a)(3),
After service of a copy of the magistrate judge's report
and recommendations, each party has fourteen days to serve
and file written objections to the report and
recommendations. A party must file objections with the clerk
of court and serve them upon the other parties and submit
them to the assigned district judge. Within seven days of
service of the objection, the opposing party or parties must