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Bolton v. Garner

United States District Court, S.D. Mississippi, Southern Division

June 6, 2019

CHARLES NEVOTNEY BOLTON PLAINTIFF
v.
KENNETH GARNER DEFENDANT

          ORDER ADOPTING MAGISTRATE JUDGE'S [21] REPORT AND RECOMMENDATION AND DISMISSING CASE WITHOUT PREJUDICE

          HALIL SULEYMAN OZERDEN, UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on the Report and Recommendation [21] of United States Magistrate Judge John C. Gargiulo, entered in this case on March 6, 2019. Based upon the Magistrate Judge's review of the record and relevant legal authority, he recommended that this case be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 41(b) for Plaintiff's failure to prosecute and to abide by the Court's Orders. R. & R. [21] at 3. For the reasons that follow, the Court finds that the Report and Recommendation [21] should adopted in its entirety as the finding of this Court and that this case should be dismissed without prejudice.

         I. BACKGROUND

         Plaintiff Charles Nevotney Bolton (“Plaintiff”) filed a pro se Complaint [1] against Defendant Kenneth Garner in this Court on April 18, 2018. Plaintiff is proceeding in forma pauperis. On April 23, 2018, the Magistrate Judge entered an Order [3] providing Plaintiff certain information and warning Plaintiff that his failure to advise the Court of a change of address would be deemed as a purposeful delay and contumacious act and could result in this case being dismissed sua sponte, without prejudice, and without further written notice. Order [3] at 2. The Magistrate Judge repeated this same warning in two Orders [5], [6] entered on June 18, 2018. See Order [6] at 2; Order [5] at 3.

         On or about September 14, 2018, Plaintiff submitted a Notice [11] of change of address. Plaintiff stated that the

[r]eason for this letter is to provide y'all with my new address. I'm not going to be here long at all am [sic] here to get process [sic] then I will be headed to another facility somewhere.

Notice [11] at 1. The envelope [12] that the Clerk of Court mailed to Plaintiff at his new address containing the notice of electronic filing of Plaintiff's Notice [11] of his change of address was marked “RETURN TO SENDER. NOT DELIVERABLE AS ADDRESSED. UNABLE TO FORWARD.” Envelope [11] at 12.

         On October 1, 2018, the Magistrate Judge entered an Order [13] setting a deadline for Defendant to file any motions for summary judgment based upon failure to exhaust administrative remedies. The envelope [14] containing this Order [13] was also returned.

         On November 12, 2018, Defendant Kenneth Garner (“Defendant”) filed a Motion [15] for Summary Judgment pursuant to Federal Rule of Civil Procedure 56, arguing that Plaintiff failed to exhaust available administrative remedies. See Mot. [15] at 2; Mem. [16] at 3-5. Plaintiff has not responded to Defendant's Motion [15].

         On December 12, 2018, the Magistrate Judge entered an Order [17] to Show Cause why this case should not be dismissed for failure to prosecute and abide by the Court's orders on grounds that Plaintiff had not informed the Court of his new address. The envelope [18] containing the Order [17] to Show Cause was returned. The Magistrate Judge entered a second Order [19] to Show Cause on January 22, 2019, and again, the envelope [20] was returned. To date, Plaintiff has not responded to the two Show Cause Orders [17], [19].

         On March 6, 2019, the Magistrate Judge entered a Report and Recommendation [21], recommending that this case be dismissed pursuant to Federal Rule of Civil Procedure 41(b) for Plaintiff's failure to prosecute and to abide by the Court's Orders. R. & R. [21] at 3. The Report and Recommendation [21] was mailed to Plaintiff on March 6, 2019, via certified mail return receipt requested. While the certified mail return receipt was initially returned, signed by an “L. Boyd” on March 11, 2019, Return [22] at 1, the envelope itself was returned to the Clerk marked “RETURN TO SENDER. ATTEMPTED - NOT KNOWN. UNABLE TO FORWARD. RETURN TO SENDER, ” Envelope [23] at 1.

         Any objection to the Magistrate Judge's Report and Recommendation [21] was due within fourteen (14) days of service. L.U. Civ. R. 72(a)(3). To date, Plaintiff has not filed any objection to the Magistrate Judge's Report and Recommendation [21], and the time for doing so has passed.

         II. DISCUSSION

         Where no party has objected to a magistrate judge's report and recommendation, a 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 ...


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