Marzett v. Brown et al

Filing 91

ORDER granting 89 Motion to Dismiss for Lack of Prosecution. Signed by Judge Jay C. Zainey. (jrc, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DELMON MARZETT

CIVIL ACTION

VERSUS

NO: 11-2264

R. BROWN, ET AL.

SECTION: "A" (3)

ORDER AND REASONS
Before the Court is a Motion to Dismiss for Failure to
Prosecute (Rec. Doc. 89) filed by defendants Marlin N. Gusman,
Sheriff of New Orleans, Major Brown, Lieutenant Dorsey, and
Deputy James Fried.

Plaintiff Delmon Marzett has not filed a

response to the motion. The motion, scheduled for submission on
September 25, 2013, is before the Court on the briefs without
oral argument.
Plaintiff Delmon Marzett filed this action pro se and in
forma pauperis while he was a prisoner housed at the Orleans
Parish Prison (“OPP”).

Marzett seeks to recover under 42 U.S.C.

§ 1983 for alleged violations of his Fourth and Fourteenth
Amendment rights. The only claim surviving motion practice is the
claim that OPP deprived Marzett of his freedom to practice his
Muslim religion.
On July 9, 2013, Marzett appeared in open court on his
motion to reopen this case.1 Marzett had been released from

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The Court had previously stayed and closed the case while
Marzett pursued an interlocutory appeal on the Court’s ruling on

custody and advised the Court that he was ready to move forward
with his case. The Court set specific deadlines, which included a
date/time certain for defense counsel to depose Marzett at
defense counsel’s office on August 20, 2013. Witness and exhibit
lists were due to be filed on August 23, 2013. (Rec. Doc. 87). A
settlement conference with the magistrate judge was set for
September 16, 2013. (Rec. Doc. 86). The Court has held open a 2
day jury trial setting on its calendar for November 4, 2013.
Defendants now move to dismiss Marzett’s complaint with
prejudice for failure to prosecute. Defendants complain that
Marzett did not appear for his deposition and made no attempt to
contact defense counsel to reschedule. A court reporter was
present needlessly due to Marzett’s failure to appear. Defendants
had also sent interrogatories and document requests to Marzett in
preparation for the deposition but Marzett did not respond.
In addition to the foregoing complaints, the Court notes
from the record that Marzett did not file witness and exhibit
lists as ordered. Then, after Defendants filed the instant motion
to dismiss, the magistrate judge contacted chambers to advise
that Marzett did not appear for the scheduled settlement
conference on September 16, 2013. Meanwhile, defense counsel was
present for the conference and ready to participate. (Rec. Doc.
90).

Defendants’ motion for summary judgment. (Rec. Doc. 78).
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Marzett was present in open court when the Court set the
current deadlines so there is no issue of notice in this case.
Marzett has either decided to abandon this lawsuit or to
intentionally flout this Court’s orders. Defendants’ motion to
dismiss, to which Marzett did not file a response, is therefore
granted.
Accordingly, and for the foregoing reasons;
IT IS ORDERED that the Motion to Dismiss for Failure to
Prosecute (Rec. Doc. 89) filed by Defendants is GRANTED.
Plaintiff’s complaint is DISMISSED.
September 25, 2013

_______________________________
JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE

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