Bolton v. Garner

Filing 24

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 21 Report and Recommendations in its entirety as the finding of this Court. Ordered that this civil action is dismissed without prejudice for Plaintiffs failure to prosecute and to abide by the Courts Orders. Signed by District Judge Halil S. Ozerden on 6/6/19. (RLW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
CHARLES NEVOTNEY BOLTON

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v.
KENNETH GARNER

PLAINTIFF
Civil No. 1:18cv132-HSO-JCG
DEFENDANT

ORDER ADOPTING MAGISTRATE JUDGE’S [21] REPORT AND
RECOMMENDATION AND DISMISSING CASE WITHOUT PREJUDICE
This matter comes before the Court on the Report and Recommendation [21]
of United States Magistrate Judge John C. Gargiulo, entered in this case on March
6, 2019. Based upon the Magistrate Judge’s review of the record and relevant
legal authority, he recommended that this case be dismissed without prejudice
pursuant to Federal Rule of Civil Procedure 41(b) for Plaintiff’s failure to prosecute
and to abide by the Court’s Orders. R. & R. [21] at 3. For the reasons that follow,
the Court finds that the Report and Recommendation [21] should adopted in its
entirety as the finding of this Court and that this case should be dismissed without
prejudice.
I. BACKGROUND
Plaintiff Charles Nevotney Bolton (“Plaintiff”) filed a pro se Complaint [1]
against Defendant Kenneth Garner in this Court on April 18, 2018. Plaintiff is
proceeding in forma pauperis. On April 23, 2018, the Magistrate Judge entered an
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Order [3] providing Plaintiff certain information and warning Plaintiff that his
failure to advise the Court of a change of address would be deemed as a purposeful
delay and contumacious act and could result in this case being dismissed sua
sponte, without prejudice, and without further written notice. Order [3] at 2.
The Magistrate Judge repeated this same warning in two Orders [5], [6] entered on
June 18, 2018. See Order [6] at 2; Order [5] at 3.
On or about September 14, 2018, Plaintiff submitted a Notice [11] of change
of address. Plaintiff stated that the
[r]eason for this letter is to provide y’all with my new address. I’m not
going to be here long at all am [sic] here to get process [sic] then I will
be headed to another facility somewhere.
Notice [11] at 1. The envelope [12] that the Clerk of Court mailed to Plaintiff at
his new address containing the notice of electronic filing of Plaintiff’s Notice [11] of
his change of address was marked “RETURN TO SENDER. NOT DELIVERABLE
AS ADDRESSED. UNABLE TO FORWARD.” Envelope [11] at 12.
On October 1, 2018, the Magistrate Judge entered an Order [13] setting a
deadline for Defendant to file any motions for summary judgment based upon
failure to exhaust administrative remedies. The envelope [14] containing this
Order [13] was also returned.
On November 12, 2018, Defendant Kenneth Garner (“Defendant”) filed a
Motion [15] for Summary Judgment pursuant to Federal Rule of Civil Procedure 56,
arguing that Plaintiff failed to exhaust available administrative remedies. See
Mot. [15] at 2; Mem. [16] at 3-5. Plaintiff has not responded to Defendant’s Motion

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[15].
On December 12, 2018, the Magistrate Judge entered an Order [17] to Show
Cause why this case should not be dismissed for failure to prosecute and abide by
the Court’s orders on grounds that Plaintiff had not informed the Court of his new
address. The envelope [18] containing the Order [17] to Show Cause was returned.
The Magistrate Judge entered a second Order [19] to Show Cause on January 22,
2019, and again, the envelope [20] was returned. To date, Plaintiff has not
responded to the two Show Cause Orders [17], [19].
On March 6, 2019, the Magistrate Judge entered a Report and
Recommendation [21], recommending that this case be dismissed pursuant to
Federal Rule of Civil Procedure 41(b) for Plaintiff’s failure to prosecute and to abide
by the Court’s Orders. R. & R. [21] at 3. The Report and Recommendation [21]
was mailed to Plaintiff on March 6, 2019, via certified mail return receipt
requested. While the certified mail return receipt was initially returned, signed by
an “L. Boyd” on March 11, 2019, Return [22] at 1, the envelope itself was returned
to the Clerk marked “RETURN TO SENDER. ATTEMPTED – NOT KNOWN.
UNABLE TO FORWARD. RETURN TO SENDER,” Envelope [23] at 1.
Any objection to the Magistrate Judge’s Report and Recommendation [21]
was due within fourteen (14) days of service. L.U. Civ. R. 72(a)(3). To date,
Plaintiff has not filed any objection to the Magistrate Judge’s Report and
Recommendation [21], and the time for doing so has passed.

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II. DISCUSSION
Where no party has objected to a magistrate judge’s report and
recommendation, a court need not conduct a de novo review of it.

28 U.S.C. §

636(b)(1) (“a judge of the court shall make a de novo determination of those portions
of the report or specified proposed findings and recommendations to which objection
is made”). In such cases, the court applies the “clearly erroneous, abuse of
discretion and contrary to law” standard of review. United States v. Wilson, 864
F.2d 1219, 1221 (5th Cir. 1989).
Having conducted the required review, the Court concludes that the
Magistrate Judge’s findings are not clearly erroneous, nor are they an abuse of
discretion or contrary to law. Plaintiff has not kept the Court apprised of his
mailing address, even after being warned several times that failure to do so would
be deemed a purposeful delay and contumacious act that may result in dismissal.
See, e.g., Order [6] at 2; Order [5] at 3; Order [3] at 2. Such inaction represents a
clear record of delay or contumacious conduct by Plaintiff.

It is apparent to the

Court that Plaintiff no longer wishes to pursue this case.
The Court will adopt the Magistrate Judge’s Report and Recommendation
[21] as the opinion of this Court, and this civil action will be dismissed without
prejudice for Plaintiff’s failure to prosecute and to abide by the Court’s Orders.
III.

CONCLUSION

IT IS, THEREFORE, ORDERED AND ADJUDGED that, the Report and
Recommendation [21] of United States Magistrate Judge John C. Gargiulo, entered

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in this case on March 6, 2019, is ADOPTED in its entirety as the finding of this
Court.
IT IS, FURTHER, ORDERED AND ADJUDGED that, this civil action is
DISMISSED WITHOUT PREJUDICE for Plaintiff’s failure to prosecute and to
abide by the Court’s Orders. A separate final judgment will be entered pursuant to
Federal Rule of Civil Procedure 58.
SO ORDERED AND ADJUDGED, this the 6th day of June, 2019.

s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE

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