Tirey v. Archie et al
ORDER OF DISMISSAL: Ordered that this civil action is dismissed without prejudice for failure to obey the Court's Orders and to prosecute. Signed by Chief District Judge Louis Guirola, Jr. on 2/27/17. (RLW)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JOEL TIREY, #399591
CIVIL NO. 1:16CV396LG-RHW
SUPERVISOR “UNKNOWN” ARCHIE, 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 Joel Tirey (“Plaintiff”) initiated this action pursuant to 42
U.S.C. § 1983 on November 3, 2016. Petitioner was an inmate of the Harrison
County Adult Detention Center, Gulfport, Mississippi, when he filed the instant
civil action. (Compl. 1, ECF No. 1). Plaintiff filed a Notice of Change of Address 
on November 8, 2016.
Prior to Plaintiff’s Notice of Change of Address , the Magistrate Judge
entered an Order on November 4, 2016, which advised Plaintiff of certain provisions
of the Prison Litigation Reform Act, Title 28, United States Code, Section 1915 and
Section 1932, and Section 47-5-138 of the Mississippi Code of 1972, for Plaintiff’s
consideration in determining whether to proceed with this action. Order . The
Order required Plaintiff to file an Acknowledgment of Receipt or a Notice of
Voluntary Dismissal within 30 days. Id. at 1-2. That Order  warned Plaintiff
that his failure to timely comply with the Orders or his failure to keep the Court
informed of his current address could lead to the dismissal of his case. A copy of
that Order  was subsequently mailed to Plaintiff at his new address on
November 15, 2016. Plaintiff did not file the required documentation or otherwise
respond to this Order.
On December 19, 2016, the Magistrate Judge entered an Order to Show
Cause  requiring that Plaintiff, on or before January 11, 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 filing the required documentation. 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 2. The envelope  containing the Order to
Show Cause  was returned by the Postal Service with a notation “inmate no
longer at this facility” and “return to sender - refused - unable to forward.” 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 26, 2017, the Magistrate Judge
entered a Final Order to Show Cause . That Order  directed that on or before
February 10, 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 the
required documentation. Order  at 2. Plaintiff was 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 “inmate no longer at this
facility” and “return to sender, refused, 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 his
Notice of Change of Address  on November 8, 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 27th day of February, 2017.
Louis Guirola, Jr.
LOUIS GUIROLA, JR.
CHIEF U.S. DISTRICT JUDGE
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