Parker v. Barbie et al

Filing 45

RULING : Pursuant to Local Rule 41(b)(4), the above-captioned proceeding shall be DISMISSED, without prejudice as a result of the plaintiff's failure to prosecute the above-captioned proceeding. Signed by Judge John W. deGravelles on 5/20/2015. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

DONALD L. PARKER (#415234)

CIVIL ACTION

VERSUS
MSGT. BARBIE, ET AL.

NO. 14-0279-JWD-RLB

RULING
The pro se plaintiff, a prisoner previously confined at the Elayn Hunt Correctional Center
(“EHCC”), St. Gabriel, Louisiana, filed this action pursuant to 42 U.S.C. § 1983 against MSgt. Jason
Barbier and Lt. Eric Knapps, complaining that the defendants violated his constitutional rights
through the use of excessive force and through deliberate indifference to the plaintiff’s serious
medical needs. Pursuant to an Opinion dated December 15, 2014 (R. Doc. 38), the Court granted
partial summary judgment, dismissing the plaintiff’s claims asserted against defendant Jason Barbie,
and referring the matter back to the Magistrate Judge for further proceedings in connection with the
plaintiff’s claims asserted against defendant Eric knapps. On January 19, 2015, the plaintiff filed
a Notice of Appeal in connection with the Court’s Ruling. See R. Doc. 40.
In response to the plaintiff’s Notice of Appeal, the Court entered an Order herein on March
2, 2015 (R. Doc. 41), directing the plaintiff to submit to this Court the applicable appellate filing fee
within twenty-one (21) days or, within such time, to submit a properly completed Motion to Proceed
In Forma Pauperis on Appeal pursuant to Rule 24(a) of the Federal Rules of Appellate Procedure,
together with a properly completed Statement of Account, certifying to the average six-month
deposits and balance in the plaintiff’s inmate account(s). The plaintiff was specifically advised that

a failure to respond to the Court’s Order within the time allowed “may result in the dismissal of the
appeal in this case without further notice from the Court.” Id. A review of the record by the Court
reflects that the plaintiff has failed to comply with the Court’s directive. To the contrary, the service
copy of the referenced Order, which was forwarded to the plaintiff at his record address, has been
returned to the Court as undeliverable, with a notation on the returned envelope stating that the
plaintiff is “NOT AT EHCC.” See R. Doc. 42. In addition, on April 20, 2015, the United States
Court of Appeals for the Fifth Circuit issued a Mandate in connection with the plaintiff’s appeal,
dismissing same for failure of the plaintiff to pay the Court’s docketing fee. See R. Doc. 43. It
appears that the service copy of the referenced Mandate has also been returned to the Court as
undeliverable. See R. Doc. 44.
Pursuant to Local Rule 41(b)(4), the failure of a pro se litigant to keep the Court apprised
of a change of address may justify dismissal of the proceeding for failure to prosecute when a notice
has been returned to a party or the Court for the reason of an incorrect address, and no correction
has been made to the address for a period of thirty (30) days. In such instance, the imposition of a
sanction against the plaintiff is appropriate, and a sanction less severe than dismissal is neither
feasible nor warranted. Specifically, if the Court were to impose a less severe sanction, there would
be no means by which to give the plaintiff notice of the sanction. A sanction that is unknown to the
sanctioned party, and for that reason cannot be enforced, is no sanction at all. Accordingly, the
above-captioned proceeding shall be dismissed as a result of the plaintiff’s failure to prosecute the
above-captioned proceeding.1 Therefore,

1

The Court further notes that the single remaining defendant, Eric Knapps, has not
been served and that the plaintiff has taken no action to effect service upon this defendant since the
filing of the Marshal’s Return in January, 2015, indicating that service was not successful. See R.
Doc. 39. Pursuant to Rule 4(m) of the Federal Rules of Civil Procedure, a Court shall dismiss an
action, without prejudice, as to any defendant not served within 120 days of the filing of the

IT IS ORDERED that the above-captioned proceeding be and it is hereby DISMISSED,
without prejudice.
Judgment shall be entered accordingly.
Signed in Baton Rouge, Louisiana, on May 20, 2015.

S
JUDGE JOHN W. deGRAVELLES
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

Complaint, absent good cause. Although an incarcerated pro se plaintiff is “entitled to rely upon
service by the U.S. Marshals and should not be penalized for failure of the Marshal’s Service to
properly effect service of process, where such fault is through no fault of the litigant,” Rochon v.
Dawson, 828 F.2d 1107 (5th Cir. 1987), such plaintiff may not “remain silent and do nothing to
effectuate such service. At a minimum, a plaintiff should attempt to remedy any apparent service
defects of which a plaintiff has knowledge.” Id. Upon it appearing that the plaintiff has taken no
action in this case to remedy the failure to effect service upon defendant Knapps, the Court
concludes that he is unable to show good cause for such failure, and that this proceeding is subject
to dismissal for this reason as well. See id. See also Lindsey v. U.S. R.R. Retirement Bd., 101 F.3d
444 (5th Cir. 1996).