Burrus v. Rishel et al

Filing 8

ORDER OF DISMISSAL WITHOUT PREJUDICE. Ordered that this case is dismissed for failure to obey the Court's Orders and to prosecute. Signed by Chief District Judge Louis Guirola, Jr on 7/21/17. (JCH)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
TIMOTHY L. BURRUS
v.

PLAINTIFF
CAUSE NO. 1:17-cv-109-LG-RHW

GLEN RISHEL, 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 L. 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.
A. Notice of Assignment
On April 14, 2017, the Clerk issued a Notice of Assignment [Ex. 1-3] 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 deemed a
purposeful delay and contumacious act that may result in the dismissal of this case.

B.

Order of April 20, 2017

On April 20, 2017, the Court entered an Order [3] directing Burrus to sign his
Complaint in compliance with Rule 11(a) of the Federal Rules of Civil Procedure.
The Order [3] directed Burrus to file a signed version of his Complaint no later than
May 4, 2017. The Order [3] 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 without further written notice.

Burrus failed to comply with this Order

[3] or otherwise contact the Court.
C. Show Cause Order of May 24, 2017
On May 24, 2017, the Court entered a Show Cause Order [4] directing Burrus to
show cause, on or before June 7, 2017, why this case should not be dismissed for his
failure to comply with the Court=s previous Order [3]. The Show Cause Order [4]
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. 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 [5] containing the Show Cause Order [4] was returned by the postal
service with the label “return to sender – refused – unable to forward.”
[5].

Ret. Mail

There was also a handwritten notation on the envelope stating “released.”

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Id.

D.

Final Show Cause Order of June 21, 2017

On June 21, 2017, the Court entered a Final Order to Show Cause [6] directing
Burrus to show cause, on or before July 5, 2017, why this case should not be
dismissed for his failure to comply with the Court=s previous Orders. The Final
Show Cause Order [6] directed Burrus to comply with the Court’s previous Orders
on or before July 5, 2017. The Final Show Cause Order [6] also warned Burrus
that “if he fails to fully comply with this Order in a timely manner or if he fails to
keep this Court advised of his current address, this case will be dismissed.”

Order

[6] at 2. The Order was mailed to Burrus at the Harrison County Adult Detention
Center.

On June 30, 2017, the envelope [7] containing the Final Show Cause

Order [6] was returned by the postal service with the label “return to sender – not
deliverable – unable to forward.”
II.

Ret. Mail [7].

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 three Court Orders [3], [4], [6]. Burrus has not contacted the
Court since the filing of this case on April 14, 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 21st day of July, 2017.

s/

Louis Guirola, Jr.

LOUIS GUIROLA, JR.
CHIEF U.S. DISTRICT JUDGE

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