Gilmore v. Beauchamp et al

Filing 13

REPORT AND RECOMMENDATIONS regarding 1 Complaint filed by Mark Gilmore...It is recommended that the plaintiff's complaint be dismissed for failure to prosecute pursuant to Local Rule 41.3M... Objections to R&R due by 2/1/2010. Signed by Magistrate Judge Stephen C. Riedlinger on 1/14/2010. (CMM,)

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

MARK GILMORE VERSUS DEPUTY E. BEAUCHAMP, ET AL CIVIL ACTION NUMBER 09-71-JVP-SCR

NOTICE Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the U. S. District Court. In accordance with 28 U.S.C. § 636(b)(1), you have 14 days after being served with the attached report to file written objections to the proposed findings of fact, conclusions of law, and recommendations set forth therein. Failure to file written objections to the proposed findings, conclusions and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court. ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT. Baton Rouge, Louisiana, January 14, 2010.

STEPHEN C. RIEDLINGER UNITED STATES MAGISTRATE JUDGE

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

MARK GILMORE VERSUS DEPUTY E. BEAUCHAMP, ET AL CIVIL ACTION NUMBER 09-71-JVP-SCR

MAGISTRATE JUDGE'S REPORT This case is before the court on the order to the plaintiff to show cause why the complaint should not be dismissed for failure to prosecute pursuant to Local Rule 41.3M. Record document number 12. On December 14, 2009, the plaintiff was ordered to show cause why his complaint should not be dismissed for failure to prosecute pursuant to Local Rule 41.3M. show cause order. This action was filed on February 3, 2009. Defendants E. Plaintiff failed to respond to the

Beauchamp and Rev. Marcus Jackson were served with the summons and complaint on April 7, 2009.1 defendant deputy Cooper.2 Summons was returned unexecuted on An answer was filed on behalf of This

defendants Beauchamp, Jackson and Cooper on May 1, 2009.3

matter has been pending over eight months without the plaintiff

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Record document numbers 7 and 8. Record document number 9. Record document number 10.

taking any other action to prosecute his claims. A district court may dismiss an action for failure to

prosecute.

Rule 41(b), Fed.R.Civ.P.; McCullough v. Lynaugh, 835

F.2d 1126, 1127 (5th Cir. 1988). Local Rule 41.3M(C) provides that a case may be dismissed "[w]here a cause has been pending six months without proceedings being taken within such period." The

scope of the court's discretion is narrower when a Rule 41(b) dismissal is with prejudice or when a statute of limitations would bar re-prosecution of an action dismissed under Rule 41(b) without prejudice. Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992). Dismissal of the plaintiff's complaint would be effectively with prejudice since if it were re-filed it would be subject to Louisiana's one-year statute of limitations. LSA-C.C. art. 3492;

Elzy v. Roberson, 868 F.2d 793 (5th Cir. 1989). It is clear that the plaintiff has lost interest in

prosecuting this action.

In addition to taking no action to

further prosecute this case, the plaintiff has failed to respond to this court's show cause order. As a practical matter, the case cannot proceed if the

plaintiff does not prosecute it or respond to the court's orders regarding disposition of the case. Imposition of sanctions short

of dismissal would be ineffective in the circumstances of this case. 2

RECOMMENDATION It is the recommendation of the magistrate judge that the plaintiff's complaint be dismissed for failure to prosecute

pursuant to Local Rule 41.3M. Baton Rouge, Louisiana, January 14, 2010.

STEPHEN C. RIEDLINGER UNITED STATES MAGISTRATE JUDGE

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