Parfait v. Nurse Dominque et al

Filing 17

ORDER ADOPTING REPORT AND RECOMMENDATIONS 15 . Accordingly, plaintiff's section 1983 complaint is DISMISSED WITHOUT PREJUDICE. Signed by Judge Sarah S. Vance on 8/8/2017.(cg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
HARRISON A. PARFAIT, JR.

CIVIL ACTION

VERSUS

NO. 17-738

MS. DOMINQUE, ET AL.

SECTION “R” (3)

ORDER
Plaintiff Harrison A. Parfait, Jr. filed this pro se complaint pursuant to
42 U.S.C. § 1983. Having reviewed de novo the complaint, 1 the record, and
the Magistrate Judge’s unopposed Report and Recommendation, 2 the Court
approves the Report and Recommendation’s conclusion that plaintiff’s case
should be dismissed for failure to prosecute.
The Court finds that the dismissal should be without prejudice. The
Fifth Circuit has instructed that district courts should not dismiss with
prejudice for failure to prosecute unless “(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-CIGNA, 975 F.2d

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R. Doc. 1.
R. Doc. 15.

1188, 1191 (5th Cir. 1992). The Fifth Circuit has also “generally held that the
district court abuses its discretion when it dismisses a case with prejudice
where the plaintiff fails only to comply with a few court orders.” Lewis v.
Sheriff’s Dept. Bossier Parish, 478 F. App’x 809, 816 (5th Cir. 2012)
(citations and internal modifications omitted).
There is no clear record of delay or contumacious conduct by the
plaintiff in this case. Though he has failed to apprise the Court of his new
address, this appears to be the only order he has disobeyed. See Brown v.
King, 250 F. App’x 28, 29 (5th Cir. 2007) (reversing dismissal with prejudice
for failure to prosecute when there was not “a clear record of purposeful delay
or contumacious conduct”); cf. Lewis, 478 F. App’x at 817-18 (dismissal with
prejudice for failure to prosecute was proper when record showed that
plaintiff “ignored the repeated admonitions of the court and used the
intervening time to pursue a frivolous interlocutory appeal and a stay of the
district court proceedings”). It is not “a party’s negligence—regardless of
how careless, inconsiderate, or understandably exasperating—that makes
conduct contumacious; instead it is the stubborn resistance to authority
which justifies a dismissal with prejudice.” Millan v. USAA Gen. Indem. Co.,
546 F.3d 321, 327 (5th Cir. 2008) (internal quotation omitted).

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Further, plaintiff was given until June 8, 2017 to notify the Court of
his new address,3 and the Report and Recommendation was entered on July
11, 2017. Although there has been a short delay, the Fifth Circuit has reversed
dismissals with prejudice for failure to prosecute in at least two cases where
only a short period of time elapsed between the court order and the
dismissal. See Brown, 250 F. App’x at 29; Vafaiyan v. Target Inc., 251 F.
App’x 862, 863 (5th Cir. 2007); see also Millan, 546 F.3d at 326-27 (5th Cir.
2008) (“The Court has recognized that delay which warrants dismissal with
prejudice must be longer than just a few months; instead, the delay must be
characterized by significant periods of total inactivity.”) (quotations
omitted).
Accordingly, plaintiff’s section 1983 complaint is DISMISSED
WITHOUT PREJUDICE.

8th
New Orleans, Louisiana, this _____ day of August, 2017.

_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

Given that the Court does not know plaintiff’s address, it is not clear
that plaintiff ever received the order.
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