Burrage v. Ross et al
ORDER ADOPTING REPORT AND RECOMMENDATIONS for 25 Report and Recommendations. Signed by District Judge Halil S. Ozerden on 2/3/17. (JCH)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
CIVIL NO. 1:15cv244-HSO-JCG
JOY ROSS, CAPTAIN, and
TIMOTHY MORRIS, WARDEN
ORDER ADOPTING MAGISTRATE JUDGE’S REPORT
AND RECOMMENDATION  AND DISMISSING
PLAINTIFF’S CLAIMS WITHOUT PREJUDICE
This matter comes before the Court on the Report and Recommendation 
of United States Magistrate Judge John C. Gargiulo, entered on January 10, 2017.
The Magistrate Judge recommended that pro se Plaintiff Marlin Burrage’s
(“Plaintiff”) Complaint  be dismissed for his failure to respond to Show Cause
Order  and explain why he failed to appear at the Omnibus Hearing, and
generally Plaintiff’s failure to prosecute. R. & R.  at 1-3. After due
consideration of the Report and Recommendation , the record, and relevant
legal authority, the Court finds that the Report and Recommendation should be
adopted as the finding of this Court, and that Plaintiff’s claims in this action should
be dismissed without prejudice.
On July 30, 2015, Plaintiff filed a Complaint  against Defendants Captain
Joy Ross and Warden Timothy Morris pursuant to 42 U.S.C. § 1983. On, March 23,
2016, the Magistrate Judge entered a Text Only Order granting Plaintiff’s Motion
 to amend his Complaint. Plaintiff has not filed anything in this case since
filing his Motion  on February 19, 2016.
Plaintiff has not updated his mailing address with the Court, even though
Plaintiff has been warned in Orders    issued by the Magistrate Judge that
failure to advise the Court of a change of address would be deemed as a purposeful
delay and contumacious act which could result in dismissal of this case. See Order
 at 2; Order  at 2; Order  at 1-2. Nor has Plaintiff responded to the
Magistrate Judge’s Show Cause Order  or otherwise explained why he failed to
update his address or appear at the Omnibus Hearing. See Show Cause Order 
On January 10, 2017, the Magistrate Judge entered a Report and
Recommendation , recommending that Plaintiff’s Complaint be dismissed for
Plaintiff’s failure to obey Orders of the Court and failure to prosecute. R. & R. 
at 1-3. A copy of the Report and Recommendation was mailed to Plaintiff at his
address of record via certified mail on January 10, 2017, and that mail  was
returned to the Clerk stamped “RETURN TO SENDER” on January 17, 2017.
Plaintiff has not objected to the Report and Recommendation, and the time for
doing so has passed.
Where no party has objected to a magistrate judge’s proposed findings of fact
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 or 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).
Having conducted the required review, the Court concludes that the
Magistrate Judge’s findings are not clearly erroneous, nor are they an abuse of
discretion or contrary to law. 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 629-30.
Plaintiff did not comply with the Orders entered by the Magistrate Judge
even after being warned that failure to do so might result in the dismissal of his
lawsuit. Plaintiff has filed nothing in this case since February 19, 2016. Such
inaction represents a clear record of delay or contumacious conduct by Plaintiff. It
is apparent to the Court that Plaintiff no longer wishes to pursue his case.
Dismissal without prejudice is warranted.
IT IS, THEREFORE, ORDERED AND ADJUDGED that, the Magistrate
Judge’s Report and Recommendation , entered in this case on January 10, 2017,
is adopted as the finding of this Court.
IT IS, FURTHER, ORDERED AND ADJUDGED that, Plaintiff Marlin
Burrage’s claims against Defendants are hereby DISMISSED WITHOUT
PREJUDICE. 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 the 3rd day of February, 2017.
s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE
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