Joiner v. Health Assurance, LLC et al

Filing 31

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 28 Report and Recommendations. Ordered that this case is dismissed without prejudice. Signed by District Judge Halil S. Ozerden on 3/13/17. (JCH)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
CHRISTOPHER ALLEN JOINER

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v.
HEALTH ASSURANCE, LLC, et al.

PLAINTIFF
Civil No. 1:16cv23-HSO-JCG
DEFENDANTS

ORDER ADOPTING MAGISTRATE JUDGE’S [28] REPORT
AND RECOMMENDATION AND DISMISSING CASE
WITHOUT PREJUDICE FOR FAILURE TO PROSECUTE
AND TO ABIDE BY THE COURT’S ORDERS
This matter comes before the Court on the Report and Recommendation [28]
of United States Magistrate Judge John C. Gargiulo, entered in this case on
January 4, 2017. Based upon his review of the pleadings and relevant legal
authority, the Magistrate Judge recommended that this case be dismissed pursuant
to Federal Rule of Civil Procedure 41(b) for Plaintiff’s failure to prosecute and to
abide by the Court’s Orders. R. & R. [28] at 4. For the reasons that follow, the
Court finds that the Report and Recommendation [28] should adopted in its entirety
as the finding of this Court and that this case should be dismissed without
prejudice.
I. BACKGROUND
Plaintiff Christopher Allen Joiner (“Plaintiff”) filed a pro se Complaint [1] in
this Court on January 25, 2016, and is proceeding in forma pauperis. The
Complaint asserts claims pursuant to 42 U.S.C. § 1983 against Defendants Health
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Assurance, LLC, Christy Bourn, Jennifer Miller, Michael Dunn, City of Pascagoula,
and Officer Josh Fox. Compl. [1] at 1. On October 13, 2016, the Magistrate Judge
entered an Order setting an omnibus hearing, which was to serve “as a Spears1
hearing and a case management hearing.” Order [20] at 1. The parties were
ordered to appear, and Plaintiff was warned that “failure to keep the Court
informed of his current address or to abide by orders of the Court may result in
dismissal of this lawsuit.” Id. at 3. The Order [20] was mailed to Plaintiff at his
address of record via certified mail return receipt requested, but the envelope
containing the Order [20] was returned to the Court as undeliverable and marked
“RTS NOT HERE.” Return [24] at 1.
On October 13, 2016, a Writ of Habeas Corpus ad Testificandum [21] for
Plaintiff was issued to the Warden of the Jackson County Adult Detention Center.
The Warden returned the Writ with a note stating “[r]eleased from here. No longer
an inmate here.” Return [23] at 2. To date, Plaintiff’s address of record is still
listed as the Jackson County Adult Detention Center.
Plaintiff failed to appear at the omnibus hearing. See Dec. 15, 2016, Minute
Entry. On December 15, 2016, the Magistrate Judge entered a Show Cause Order
[26] requiring Plaintiff to file a written response by December 29, 2016, “showing
cause why his failure to appear at the omnibus hearing and to abide by the Court’s
numerous Orders requiring him to keep the Court apprised of his current address
should not result in dismissal of this suit for failure to prosecute.” Order [26] at 1.

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Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).

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Plaintiff was “specifically warned that failure to comply with this Order by timely
filing a written response will result in an immediate recommendation to the District
Judge that this case be dismissed pursuant to Federal Rule of Civil Procedure 41(b)
for failure to prosecute.” Id. The Show Cause Order [26] was mailed via certified
mail return receipt requested, but was also returned as undeliverable. Return [27]
at 1.
Plaintiff did not respond to the Show Cause Order [26]. On January 4, 2017,
the Magistrate Judge entered his Report and Recommendation [28], recommending
that this case be dismissed pursuant to Federal Rule of Civil Procedure 41(b) for
Plaintiff’s failure to prosecute and to abide by the Court’s Orders. R. & R. [28] at 4.
The Report and Recommendation [28] was mailed to Plaintiff on January 4, 2017,
via certified mail return receipt requested, and was returned to the Court as
undeliverable. Return [29] at 1.
Any objection to the Magistrate Judge’s Report and Recommendation [28]
was due within fourteen (14) days of service, or no later than January 18, 2017.
L.U. Civ. R. 72(a)(3). To date, Plaintiff has not filed any objection to the
Magistrate Judge’s Report and Recommendation [28].
II. DISCUSSION
Where no party has objected to the 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

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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. The Court will adopt the Magistrate Judge’s Report
and Recommendation [28] as the opinion of this Court, and this civil action will be
dismissed without prejudice for Plaintiff’s failure to prosecute and to abide by the
Court’s Orders.
Even under a de novo review, the result would not change. This Court has
the authority to dismiss an action for a 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 has not kept the Court apprised of his mailing address, even after
being warned numerous times that failure to do so would be deemed a purposeful
delay and contumacious act that may result in the dismissal of his case. See, e.g.,

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Order [3] at 2; Order [5] at 3; Order [6] at 2; Order [20] at 3. Plaintiff has filed
nothing in this case in over a year, since he filed his Motion to Appoint Counsel [10]
and Memorandum in Support [11] on March 7, 2016.

Nor has Plaintiff updated his

address in the time since the Magistrate Judge’s Order [20] setting omnibus
hearing was entered and mailed to him on October 13, 2016, five months ago.
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 this
case.

Dismissal is warranted.
IT IS, THEREFORE, ORDERED AND ADJUDGED that, the Report and

Recommendation [28] of United States Magistrate Judge John C. Gargiulo, entered
on January 4, 2017, is ADOPTED in its entirety as the finding of this Court.
IT IS, FURTHER, ORDERED AND ADJUDGED that, this civil action is
DISMISSED WITHOUT PREJUDICE for Plaintiff’s failure to prosecute and to
abide by the Court’s Orders. A separate final judgment will be entered pursuant to
Federal Rule of Civil Procedure 58.
SO ORDERED AND ADJUDGED, this the 13th day of March, 2017.

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

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