Burrus v. Peterson et al

Filing 14

ORDER: 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 7/27/17. (RLW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
TIMOTHY LAWRENCE BURRUS

PLAINTIFF

v.

CAUSE NO. 1:16-cv-424-LG-RHW

TROY PETERSON, et al.

DEFENDANTS

ORDER OF DISMISSAL WITHOUT PREJUDICE
This matter is before the Court sua sponte. 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.
I.

BACKGROUND

Pro Se Plaintiff Timothy Lawrence Burrus brings this conditions of
confinement Complaint pursuant to 42 U.S.C. § 1983. At the time of filing this
action, Burrus was incarcerated at the Harrison County Adult Detention Center in
Gulfport, Mississippi. Burrus is proceeding in forma pauperis. See Order [7].
A. Notice of Assignment
On December 2, 2016, the Clerk issued a Notice of Assignment [Ex. 1-2]
advising Burrus that he was required to notify the Court in writing if his address
changed and it also warned Burrus that his failure to advise the Court of a change
of address or his failure to timely comply with any order of the Court would be

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deemed a purposeful delay and contumacious act that may result in the dismissal of
this case.
B.

Order of February 17, 2017

On February 17, 2017, the Court entered an Order [8] directing Burrus to file
a written response to provide specific information regarding three of the
Defendants. The Order [8] directed Burrus to file his response on or before March
10, 2017. The Order [8] also warned Burrus that failure to timely comply or failure
to keep the Court informed of his current address will lead to the dismissal of this
case.

Burrus filed a Response [9] to the Order that appeared to voluntarily dismiss

some Defendants and possibly add others as Defendants.
C.

Order of May 24, 2017

On May 24, 2017, the Court entered an Order [10] directing Burrus to file a
written response to clarify the Defendants. The Order [10] directed Burrus to file
his response on or before June 14, 2017. The Order [10] also warned Burrus that
failure to timely comply or failure to keep the Court informed of his current address
will result in the dismissal of this case. The Order was mailed to Burrus at the
Harrison County Adult Detention Center which is the address Burrus provided in
his Complaint.

Compl. [1] at 1-2.

On June 1, 2017, the envelope [11] containing

this Order [10] was returned by the postal service with the label “return to sender –
refused – unable to forward.” Ret. Mail [11].
Order or otherwise contact the Court.
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Burrus failed to comply with this

D. Show Cause Order of June 28, 2017
On June 28, 2017, the Court entered a Show Cause Order [12] directing
Burrus to show cause, on or before July 12, 2017, why this case should not be
dismissed for his failure to comply with the Court=s previous Order [10]. The Show
Cause Order [10] warned Burrus that failure to timely comply or failure to advise
the Court of a change of address would result in the dismissal of this case without
further written notice. The Show Cause Order was also mailed to Burrus at the
Harrison County Adult Detention Center.

On July 5, 2017, the envelope [13]

containing the Show Cause Order [12] was returned by the postal service with the
label “return to sender – not deliverable as addressed – unable to forward.”

Ret.

Mail [13]. Burrus failed to comply with the Show Cause Order or otherwise
contact the Court.
II.

DISCUSSION

This Court has the authority to dismiss an action sua sponte for failure to
prosecute and failure to comply with court orders under Rule 41(b) of the Federal
Rules of Civil Procedure and under its inherent authority. See Link v. Wabash
R.R., 370 U.S. 626 (1962); Larson v. Scott, 157 F.3d 1030 (5th Cir.1998);
McCullough v. Lynaugh, 835 F.2d 1126 (5th Cir. 1988). The Court must be able to
clear its calendar 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. Link, 370 U.S. at 630. Such a Asanction is
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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.
Burrus has failed to keep this Court advised of his current address and he has
failed to comply with two Court Orders [10], [12]. Burrus has not contacted the
Court since March 6, 2017. As the record demonstrates, lesser sanctions than
dismissal have not prompted Adiligent prosecution,@ but instead such efforts have
proven futile. See Tello v. Comm=r of Internal Revenue, 410 F.3d 743, 744 (5th Cir.
2005). Docketing another show cause order would likewise be futile when Burrus
has failed to provide a valid address. Therefore, the Court concludes that dismissal
of this action is proper for Burrus=s failure to prosecute and for failure to comply
with the Orders of the Court under Rule 41(b) of the Federal Rules of Civil
Procedure. See Rice v. Doe, 306 F. App=x 144, 146 (5th Cir. 2009) (affirming
dismissal based on inmate=s failure to comply with a court order). Since the
Defendants have not been called on to respond to Burrus’s pleading, and the Court
has not considered the merits of Burrus=s claims, the Court=s Order of Dismissal is
without prejudice. See Munday/Elkins Auto. Partners, Ltd. v. Smith, 201 F. App=x
265, 267 (5th Cir. 2006).
III. CONCLUSION
For the reasons stated herein, this civil action will be dismissed without
prejudice.

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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 July, 2017.

Louis Guirola, Jr. 

s/ 

Louis Guirola, Jr.
Chief U.S. District Judge

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