Bostwick v. Doe et al

Filing 15

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 Louis Guirola, Jr. on 11/30/17. (RLW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
DENNIS AVERY BOSTWICK, #198578
v.

PLAINTIFF
CAUSE NO. 1:17-cv-124-LG-RHW

OFFICER JOHN DOE, et al.

DEFENDANTS

ORDER OF DISMISSAL WITHOUT PREJUDICE
This matter is before the Court sua sponte. After consideration of the record
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 Dennis Avery Bostwick brings this Complaint pursuant to 42
U.S.C. § 1983. At the time of filing this civil action, Bostwick was incarcerated at
the Harrison County Adult Detention Center in Gulfport, Mississippi. According to
Bostwick’s May 17, 2017, Notice [4] of change of address, he is presently
incarcerated at the Central Mississippi Correctional Facility in Pearl, Mississippi.
Bostwick is proceeding in forma pauperis. See Order [7].
On June 23, 2017, the Court entered an Order [10] directing Bostwick to file
a written response to provide specific information regarding his claims. The Order
[10] directed Bostwick to file his response on or before July 14, 2017, and warned
Bostwick that failure to timely comply or failure to keep the Court informed of his

current address would lead to the dismissal of this case.

Bostwick failed to comply

with this Order [10].
On August 4, 2017, the Court entered a Show Cause Order [12] directing
Bostwick to show cause, on or before August 18, 2017, why this case should not be
dismissed for his failure to comply with the Court=s previous Order [10]. The Show
Cause Order [12] warned Bostwick that failure to timely comply or failure to advise
the Court of his current address “will result in the dismissal of this case without
further written notice to the Plaintiff.” Order [12] at 1. Bostwick failed to comply
with the Show Cause Order or otherwise contact the Court.
On August 31, 2017, the Court entered a Second Order to Show Cause [13]
directing Bostwick to show cause, on or before September 15, 2017, why this case
should not be dismissed for his failure to comply with the Court=s previous two
Orders.

The Second Order to Show Cause [13] warned Bostwick 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 [13] at 2.

Bostwick failed to comply with the Second Order to Show Cause or otherwise
contact the Court.
Since Bostwick is incarcerated and proceeding pro se, he was provided one
final opportunity to comply with the Court’s Orders prior to the dismissal of this
case. On October 24, 2017, the Court entered a Final Order to Show Cause [14]
directing Bostwick to show cause, on or before November 7, 2017, why this case
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should not be dismissed for his failure to comply with the Court=s previous three
Orders. The Final Order to Show Cause [14] warned Bostwick 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
[14] at 2 (emphasis in the original).

The Final Order to Show Cause [14] directed

the Clerk of Court to mail a copy of the Order [14] and a copy of the June 23, 2017
Order [10] to Bostwick at his address of record and also to the facility listed as
Bostwick’s location on October 24, 2017, on the website for the Mississippi
Department of Corrections.

Bostwick has not complied with the Final Show Cause

Order or otherwise contacted 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
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.
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Bostwick has not contacted the Court since June 22, 2017, and he has failed to
comply with four Court Orders [10, 12, 13, 14], even after being warned that failure
to do so would result in the dismissal of this case. It is apparent that Bostwick
does not wish to pursue this action.
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). Therefore,
the Court concludes that dismissal of this action is proper for Bostwick=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 Bostwick’s
pleading, and the Court has not considered the merits of Bostwick=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.
IT IS, THEREFORE, ORDERED AND ADJUDGED that this civil action is
DISMISSED WITHOUT PREJUDICE for failure to obey the Court’s Orders and

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to prosecute. A separate final judgment will be entered pursuant to Federal Rule
of Civil Procedure 58.
SO ORDERED AND ADJUDGED this the 30th day of November, 2017.
s/

Louis Guirola, Jr.

LOUIS GUIROLA, JR.
UNITED STATES DISTRICT JUDGE

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