Evert v. Lenoir-Rowell Criminal Justice Center et al
ORDER: Ordered that this civil action is dismissed without prejudice for failure to obey the Court's Orders and to prosecute. Signed by District Judge Halil S. Ozerden on 3/2/17. (RLW)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JOSHUA CALEB EVERT, #49211
CIVIL NO. 1:16-cv-374-HSO-JCG
JUSTICE CENTER, ET AL.
ORDER OF DISMISSAL WITHOUT PREJUDICE
This matter is before the Court sua sponte for consideration of dismissal.
After consideration of the record in this case and relevant legal authority, and for
the reasons discussed below, the Court finds that this civil action should be
dismissed without prejudice.
Pro se Plaintiff Joshua Caleb Evert (“Plaintiff”) initiated this action pursuant
to 42 U.S.C. § 1983 on October 17, 2016. Petitioner was an inmate of the Pearl
River County Jail, Poplarville, Mississippi, when he filed this case. Compl.  at 1.
On November 8, 2016, the Magistrate Judge entered an Order  in which
he directed Plaintiff to file a Response providing additional information concerning
the allegations in his Complaint . The Order  required Plaintiff to file a
Response on or before November 30, 2016. The Order  warned Plaintiff that his
failure to timely comply with the Order or his failure to keep the Court informed of
his current address could lead to the dismissal of his case. Plaintiff did not file the
required documentation or otherwise respond to this Order.
On December 20, 2016, the Magistrate Judge entered an Order to Show
Cause  requiring that Plaintiff, on or before January 13, 2017: (1) file a written
response, showing cause why this case should not be dismissed for Plaintiff’s failure
to comply with the Court’s prior Order ; and (2) comply with the Court’s prior
Order  by providing the required additional information concerning his claims.
Order  at 1-2. Plaintiff was cautioned that his “failure to advise the Court of a
change of address or failure to timely comply with any order of the Court . . .
may result in this cause being dismissed without prejudice.” Id. at 3. The envelope
 containing the Order to Show Cause  was returned by the Postal Service
with a notation “return to sender.” Plaintiff did not respond to this Order  or
provide a change of address.
Since Plaintiff is proceeding pro se, he was provided one final opportunity to
comply with the Court’s Orders. On January 27, 2017, the Magistrate Judge
entered a Final Order to Show Cause . The Order  directed that on or before
February 14, 2017, Plaintiff: (1) file a written response, showing cause why this
case should not be dismissed for Plaintiff’s failure to comply with the Court’s
previous Orders; and (2) comply with the Court’s previous Orders by filing a
Response providing the required information concerning the claims in his
Complaint . Order  at 1-2. Plaintiff was again warned that his “failure to
advise the Court of a change of address or failure to timely comply with any order of
the Court will be deemed as a purposeful delay and contumacious act by
Plaintiff and will result in this cause being dismissed without prejudice and
without further notice to Plaintiff.” Id. at 2. The envelope  containing this
Order was returned by the Postal Service with a notation “return to sender, not
deliverable as addressed, unable to forward.” Plaintiff did not respond to this
Order or provide a change of address.
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 have remained 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 630-31.
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.
Plaintiff did not comply with the Orders entered by the Magistrate Judge
even after being warned several times that failure to do so would result in the
dismissal of his case. Order  at 2; Order  at 2; Order  at 2. Plaintiff has
not responded to the Court’s Orders or otherwise contacted the Court since he filed
four letters  on November 7, 2016. Such inaction presents a clear record of
delay or contumacious conduct by Plaintiff. It is apparent that Plaintiff no longer
wishes to pursue this lawsuit. As the record demonstrates, lesser sanctions than
dismissal have not prompted “diligent prosecution,” but instead such efforts have
proven futile. See Tello v. Comm’r., 410 F.3d 743, 744 (5th Cir. 2005). Dismissal
without prejudice is warranted.
For the reasons stated herein, this civil action will be dismissed without
IT IS, THEREFORE, ORDERED AND ADJUDGED that this civil action
is DISMISSED WITHOUT PREJUDICE for failure to obey the Court’s Orders
and to prosecute. A separate final judgment will be entered pursuant to Federal
Rule of Civil Procedure 58.
SO ORDERED AND ADJUDGED, this the 2nd day of March, 2017.
s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE
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