Skipper v. Mississippi Department of Corrections et al

Filing 8

ORDER DISMISSING CASE. CASE CLOSED. Signed by District Judge Sharion Aycock on 3/15/2010. (psk, USDC)

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI GREENVILLE DIVISION ALVIN SKIPPER V. MISSISSIPPI DEPARTMENT OF CORRECTIONS, et al. PLAINTIFF NO. 4:09CV064-A-S DEFENDANTS

ORDER DISMISSING COMPLAINT FOR FAILURE TO PROSECUTE This matter is before the court sua sponte for consideration of dismissal. The court finds that an order dated February 9, 2010, setting a date for a hearing was served upon Plaintiff at his last known address. Despite the notice, the Plaintiff failed to appear before the court on March 2, 2010. Rule 4l(b), Federal Rules of Civil Procedure, provides, inter alia, For failure of the plaintiff to prosecute or to comply with these Rules or any order of the court defendant may move for dismissal of an action or of any claim against him. Even though the Rule addresses dismissal on motion of a defendant, it is now settled that the court has the inherent authority to dismiss sua sponte for want of prosecution. Link v. Wabash Railroad, 370 U.S. 626 (l962); Lopez v. Aransas County Independent School District, 570 F.2d 54l, 544 (5th Cir. l978). Rule 4l(b) further provides, inter alia: Unless the court in its order for dismissal otherwise specifies, dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule l9, operates as an adjudication upon the merits. Since the Defendants have never been called upon to respond to Plaintiff's pleading, and have never appeared in this action, and since the court has not considered the merits of Plaintiff' s claims, the court' order of dismissal should provide that dismissal is without prejudice. Shaw v. s Estelle, 542 F.2d 954 (5th Cir. l976).

Therefore, it is hereby ORDERED that the cause be DISMISSED without prejudice pursuant to Rule 41(b), Federal Rules of Civil Procedure, for failure to comply with an order of the court and this matter is CLOSED. THIS the 15th day of March, 2010. /s/ Sharion Aycock U.S. DISTRICT JUDGE

2