Best v. Lenoir Rowell Criminal Justice Center

Filing 33

ORDER adopting Report and Recommendations re 31 Report and Recommendations.; granting 27 Motion for Summary Judgment. Ordered that this case is dismissed without prejudice for failure to prosecute and to abide by the Court's Orders and for Plaintiff's failure to exhaust available administrative remedies. Signed by District Judge Halil S. Ozerden on 6/13/17. (JCH)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
SHELBY WAYNE BEST

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v.
ALEX FORD, Officer at PRCJ, et al.

PLAINTIFF
Civil No. 1:16cv81-HSO-JCG
DEFENDANTS

ORDER ADOPTING MAGISTRATE JUDGE’S
[31] REPORT AND RECOMMENDATION; GRANTING DEFENDANTS’
[27] MOTION FOR SUMMARY JUDGMENT; AND DISMISSING CASE
WITHOUT PREJUDICE FOR FAILURE TO PROSECUTE AND
TO ABIDE BY THE COURT’S ORDERS AND FOR FAILURE
TO EXHAUST ADMINISTRATIVE REMEDIES
This matter comes before the Court on the Report and Recommendation [31]
of United States Magistrate Judge John C. Gargiulo, entered in this case on May
12, 2017, and the Motion for Summary Judgment [27] Based on Failure to Exhaust
Administrative Remedies filed by Defendants Alex Ford, Lisa Wayne, and Elizabeth
McGill on April 19, 2017. Based upon the Magistrate Judge’s review of the
pleadings and relevant legal authority, he 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 and pursuant to 42 U.S.C. § 1997e(a) for failure
to exhaust administrative remedies, and recommended that Defendants’ Motion for
Summary Judgment [27] be granted. R. & R. [31] at 7.
For the reasons that follow, the Court finds that the Report and
Recommendation [31] should adopted in its entirety as the finding of this Court,
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that Defendants’ Motion for Summary Judgment [27] should be granted, and that
this case should be dismissed without prejudice.
I. BACKGROUND
Plaintiff Shelby Wayne Best (“Plaintiff”) filed a pro se Complaint [1] in this
Court on March 3, 2016, and is proceeding in forma pauperis. The Complaint
asserts claims pursuant to 42 U.S.C. § 1983 against certain employees of the Pearl
River County Jail (“PRCJ”), namely Defendants Alex Ford, Officer at PRCJ; Lisa
Wayne, Lieutenant at PRCJ; and Elizabeth McGill, Sergeant at PRCJ. Compl. [1]
at 1; Order [14] at 1.
On April 4, 2017, the Magistrate Judge entered an Order setting an omnibus
hearing, which was to serve “as a Spears1 hearing and a case management
hearing.” Order [22] 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 [22] was mailed to Plaintiff at his address of record, but the envelope
containing the Order [22] was returned to the Court as undeliverable and marked
“RETURN TO SENDER.” Return [25] at 1.
On April 19, 2017, Defendants filed a Motion for Summary Judgment [27]
Based on Failure to Exhaust Administrative Remedies. Defendants presented
evidence that administrative remedies were available to Plaintiff, yet he failed to
exhaust them prior to filing the present case.

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

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Plaintiff failed to appear at the omnibus hearing. See Apr. 26, 2017, Minute
Entry. The Magistrate Judge entered a Show Cause Order [29] requiring Plaintiff
to file a written response by May 10, 2017, “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 [29] at 1. Plaintiff was “specifically
warned that failure to timely comply with this Order 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 [29] was mailed via certified mail return receipt requested, but was
also returned undelivered. Return [30] at 1.
Plaintiff did not respond to the Show Cause Order [29]. On May 31, 2017,
the Magistrate Judge entered his Report and Recommendation [31], 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 and pursuant to
42 U.S.C. § 1997e(a) for failure to exhaust administrative remedies, and further
recommending that Defendants’ Motion for Summary Judgment [27] be granted.
R. & R. [31] at 7. The Report and Recommendation [31] was mailed to Plaintiff on
May 12, 2017, via certified mail return receipt requested, and was returned to the
Court as undeliverable. Return [32] at 1. The envelope was marked “Paroled
2/22/17 RTS.” Id.
Any objection to the Magistrate Judge’s Report and Recommendation [31]

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was due within fourteen (14) days of service. L.U. Civ. R. 72(a)(3). To date,
Plaintiff has not filed any objection to the Magistrate Judge’s Report and
Recommendation [31].
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
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 [31] 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 and for Plaintiff’s failure to exhaust available administrative
remedies.
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);

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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.,
Order [3] at 2; Order [4] at 2; Order [7] at 3; Order [8] at 1; Order [10] at 1; Order
[14] at 3; Order [22] at 3.

Such inaction represents a clear record of delay or

contumacious conduct by Plaintiff.
longer wishes to pursue this case.

It is apparent to the Court that Plaintiff no
Dismissal is warranted.

Moreover, Plaintiff has failed to exhaust available administrative remedies
prior to filing suit, which mandates dismissal of his claims.

The Prison Litigation

Reform Act, 42 U.S.C. § 1997e(a) (“PLRA”) requires prisoners to exhaust ‘such
administrative remedies as are available’ prior to filing a § 1983 action regarding
prison conditions.” Cowart v. Erwin, 837 F.3d 444, 451 (5th Cir. 2016) (quoting 42
U.S.C. § 1997e(a)). The United States Supreme Court has held that § 1997e’s
exhaustion “language is ‘mandatory.’” Ross v. Blake, 136 S. Ct. 1850, 1856 (2016).
Defendants have presented evidence that Plaintiff failed to exhaust his
available administrative remedies related to his claims presented in this case prior

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to filing this lawsuit. See, e.g., Aff. of Julie Flowers [27-1] at 1-2. Plaintiff has not
submitted any competent summary judgment to rebut this showing.

The Court

finds that dismissal of Plaintiff’s claims for this reason is warranted as well, and
Defendants’ Motion for Summary Judgment [27] should be granted. See Fed. R.
Civ. P. 56(a).
III.

CONCLUSION

IT IS, THEREFORE, ORDERED AND ADJUDGED that, the Report and
Recommendation [31] of United States Magistrate Judge John C. Gargiulo, entered
in this case on May 12, 2017, is ADOPTED in its entirety as the finding of this
Court.
IT IS, FURTHER, ORDERED AND ADJUDGED that, the Motion for
Summary Judgment [27] Based on Failure to Exhaust Administrative Remedies
filed by Defendants Alex Ford, Lisa Wayne, and Elizabeth McGill on April 19, 2017,
is GRANTED.
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 and for Plaintiff’s failure to exhaust available
administrative remedies. A separate final judgment will be entered pursuant to
Federal Rule of Civil Procedure 58.
SO ORDERED AND ADJUDGED, this the 13th day of June, 2017.

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