Battise v. Astrue

Filing 22

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 20 Report and Recommendations and Dismissing Plaintiff's Complaint without prejudice. Signed by District Judge Halil S. Ozerden on 4/21/2015 (wld)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
GLEN DAVID BATTISE, JR.
VERSUS
MICHAEL ASTRUE
Commissioner of Social Security

PLAINTIFF
CIVIL ACTION NO. 1:11cv317-HSO-RHW

DEFENDANT

ORDER ADOPTING MAGISTRATE JUDGE’S [20] PROPOSED
FINDINGS OF FACT AND RECOMMENDATION, AND DISMISSING
PLAINTIFF’S COMPLAINT WITHOUT PREJUDICE
This matter comes before the Court on the Proposed Findings of Fact and
Recommendation [20] of United States Magistrate Judge Robert H. Walker, entered
in this case on March 25, 2015. Magistrate Judge Walker recommended that this case
be dismissed without prejudice for Plaintiff’s failure to prosecute. Proposed Findings
of Fact and Recommendation [20] at 2. The envelope [21] containing the Proposed
Findings of Fact and Recommendation was returned as undeliverable. To date,
Plaintiff has not filed any objection to the Proposed Findings of Fact and
Recommendation.
Where no party has objected to a magistrate judge’s report and recommendation,
the Court need not conduct a de novo review of it. 28 U.S.C. § 636(b)(1) (“a judge of the
court shall make a de novo determination of those portions of the report or specified
proposed findings and recommendations to which objection is made.”). In such cases,
the Court applies the “clearly erroneous, abuse of discretion and contrary to law”
standard of review. United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989).

Even if the Court were to conduct a de novo review, dismissal of Plaintiff’s
claims is warranted. This Court has the authority to dismiss an action for Plaintiff’s
failure to prosecute under Federal Rule of Civil Procedure 41(b), and under its inherent
authority to dismiss the action sua sponte. See Link v. Wabash Railroad, 370 U.S. 626,
630-31 (1962); McCullough v Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988). The Court
must be able to clear its calendars of cases that remain dormant because of the inaction
or dilatoriness of the parties seeking relief, so as to achieve the orderly and expeditious
disposition of cases. Such a sanction is necessary in order to prevent undue delays in
the disposition of pending cases and to avoid congestion in the calendars of the court.
See Link, 370 U.S. at 630-31.
Plaintiff had previously been warned that his failure to prosecute could result
in the dismissal of his case. In Magistrate Judge Walker’s January 20, 2015, Order
[17] Granting Motion to Withdraw and Extending Briefing Schedule, Bradley H. Ezell
was terminated as counsel for Battise and Mr. Ezell was instructed to mail a copy of
the Order to Battise at his last known address.1 The Order further extended to March
20, 2015, the deadline for Battise to file a memorandum brief in accordance with
subsection 1(a) of the Order [15] Setting Deadlines and Briefing Schedule for Review
of Social Security Decision. The Order [17] extended the memorandum deadline to
allow Battise “the opportunity either to obtain substitute counsel or to file and serve
a pro se memorandum brief in support of his claim” and he was cautioned that “failure
to obtain substitute counsel or to file a pro se memorandum brief in support of his

1

Mr. Ezell filed a Notice [19] of mailing on February 5, 2015.
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claim” would result in his case being dismissed for failure to prosecute. Order [17] at
1-2. The envelope [18] containing the Order [17] was returned as undeliverable. The
March 20, 2015, deadline passed without any communication from Battise, and he has
taken no further action in this case.
After review of the record, the Court, being fully advised in the premises, finds
that the Proposed Findings of Fact and Recommendation [20] is neither clearly
erroneous nor contrary to law, and should be adopted as the opinion of this Court.
Accordingly,
IT IS, THEREFORE, ORDERED AND ADJUDGED that, the Proposed
Findings of Fact and Recommendation [20] of United States Magistrate Judge Robert
H. Walker, entered in this case on March 25, 2015, is adopted as the finding of this
Court.
IT IS, FURTHER, ORDERED AND ADJUDGED that, this case is
DISMISSED WITHOUT PREJUDICE for failure to prosecute. A separate judgment
will be entered in accordance with this Order, as required by Rule 58 of the Federal
Rules of Civil Procedure.
SO ORDERED AND ADJUDGED, this 21st day of April, 2015.

s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE

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