Garrett v. Mississippi Dept. of Corrections et al

Filing 10

MEMORANDUM OPINION AND ORDER. Signed by District Judge Halil S. Ozerden on 3/20/13. (JCH)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
ELTON WENDELL GARRETT
VERSUS

PLAINTIFF
CIVIL ACTION NO. 1:12-cv-362-HSO-JMR

MISSISSIPPI DEPARTMENT OF CORRECTIONS, et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This cause comes before this Court, sua sponte, for dismissal. Plaintiff filed
his Complaint [1] pursuant to 42 U.S.C. § 1983 on November 19, 2012. The Court
entered two Orders [3, 4] on November 19, 2012. One Order [3] directed Plaintiff to
sign and return to this Court an Acknowledgment of Receipt and Certification
(Form PSP-3) or a Notice of Voluntary Dismissal (Form PSP-4) within 30 days. The
other Order [4] directed Plaintiff to pay the required $350.00 filing fee or file a
completed in forma pauperis application, specifically the section entitled
"Certificate to Be Completed by Authorized Officer" of prison accounts, or file an
affidavit specifically stating the name of the prison official contacted concerning the
Certificate and why this information is not provided to this Court within 30 days.
The envelope [5] containing the Orders [3, 4] entered on November 19, 2012, as well
as the Notice of Assignment, docket sheet, and NEF’s, was returned by the Postal
Service with a notation that it was “undeliverable.”
The Court found that Plaintiff had provided an alternate address on page 2 of
the Complaint [1]. An Order [6] was entered on December 4, 2012, directing the
Clerk to change Plaintiff’s address and to mail a copy of the Orders [3, 4] entered on
November 19, 2012, to Plaintiff at his alternate address. That Order [6] also

granted Plaintiff until and including December 19, 2012, to comply with the Orders
[3, 4] entered on November 19, 2012. Even though Plaintiff was warned that
failure to comply with the Orders [3, 4] or failure to notify this Court of a change of
address could result in the dismissal of the instant civil action, Plaintiff failed to
comply.
When Plaintiff did not comply with the Orders [3, 4, 6], the Court entered an
Order to Show Cause [7] on January 4, 2013, directing Plaintiff to respond on or
before January 22, 2013. The Order [7] also directed Plaintiff to comply with the
Orders [3, 4] entered on November 19, 2012, and warned Plaintiff that if he did not
comply with the Orders [3, 4] or if he did not advise this Court of a new address this
action could be dismissed. Apparently, Plaintiff received the Orders
[6, 7] because the envelopes containing those Orders were not returned by the
Postal Service. Plaintiff, however, has not file any response as ordered by this
Court.
The Court entered a Second and Final Order to Show Cause [8] on February
6, 2013, once again directing Plaintiff to explain on or before February 22, 2013,
why this case should not be dismissed for his failure to timely comply with the
Orders [3, 4] of November 19, 2012, and further directing Plaintiff to comply with
those Orders [3, 4]. The envelope [9] containing Orders [3, 4, 6, 8] was returned on
February 14, 2013, by the Postal Service with the notation “return to sender unable to forward.” Plaintiff has now failed to comply with five Orders
[3, 4, 6, 7, 8], and he has not contacted this Court since he filed the Complaint [1] on
November 19, 2012.
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This Court has the authority to dismiss an action for Plaintiff’s failure to
prosecute under Rule 41(b) of the FEDERAL RULES OF CIVIL PROCEDURE and under
its inherent authority to dismiss the action sua sponte. See generally Link v.
Wabash R.R., 370 U.S. 626 (1962); Larson v. Scott, 157 F.3d 1030 (5th Cir.1998);
McCullough v. Lynaugh, 835 F.2d 1126 (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. Link, 370 U.S. at 630. 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. Id. at 629-30.
The Court concludes that dismissal of this action under Rule 41(b) for
Plaintiff’s failure to prosecute and failure to comply with the Orders of the Court is
proper. Since Defendants have not been called upon to respond to Plaintiff’s
pleading, and have not appeared in this action, and since the Court has not
considered the merits of Plaintiff’s claims, the Court’s Order of dismissal will be
without prejudice. See Munday/Elkins Auto. Partners, LTD. v. Smith, 201 F. App’x
265, 267 (5th Cir. 2006).
A Final Judgment in accordance with this Memorandum Opinion and Order
will be entered.
SO ORDERED, this the 20th day of March, 2013.
s/

Halil Suleyman Ozerden

HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE
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