Frazier v. Cain

Filing 18

ORDER: Ordered that this case is dismissed without prejudice. Signed by District Judge Louis Guirola, Jr on 1/3/25. (JCH)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
KENDRICK DARNELL FRAZIER
v.

PLAINTIFF
CAUSE NO. 1:24-cv-00111-LG-BWR

BURL CAIN

DEFENDANT

ORDER OF DISMISSAL FOR LACK OF PROSECUTION
THIS MATTER IS BEFORE THE COURT sua sponte. Pro se Plaintiff
Kendrick Darnell Frazier brings this Complaint under 42 U.S.C. § 1983, alleging
violations of his constitutional rights during his incarceration at the George/Greene
County Correctional Facility in Lucedale, Mississippi. (Compl. at 4-5, ECF No. 1).
Plaintiff names Commissioner Burl Cain as Defendant, (id. at 1-2), and he is
proceeding in forma pauperis, (Order, ECF No. 11).
On September 17, 2024, while screening this case under the Prison Litigation
Reform Act, 28 U.S.C. § 1915, et seq., the Court ordered Plaintiff to file a written
response to answer a series of questions that will aid the Court in assessing his
claims. (Order at 2, ECF No. 12). As relevant here, Plaintiff was asked to advise
the Court whether he wants to name Officer Bowens and Officer Hayes as
Defendants herein. (Id.) Plaintiff was warned that “[f]ailure to advise the Court of
a change of address or failure to timely comply with any order of the Court . . . may
result in this lawsuit being dismissed without prejudice and without further notice.”
(Id.)

On October 4, 2024, Plaintiff filed a Motion to Amend, asking the Court “to
include the Defendant perpetrators of excessive use of illegal force by assaulting
Plaintiff,” (Mot. at 1, ECF No. 13), but he did not specify the names of these alleged
perpetrators. Because Plaintiff is proceeding pro se, he was given an extension of
time within which to respond. (Order, ECF No. 14). On October 17, 2024, Plaintiff
was ordered “on or before October 31, 2024, . . . [to] file a written response to clarify
whether he wants to name Officer Bowens and Officer Hayes as Defendants herein.”
(Id. at 1). Plaintiff was warned again that “[f]ailure to advise the Court of a change
of address or failure to timely comply with any order of the Court . . . may result in
this lawsuit being dismissed without prejudice and without further notice.” (Id.)
That Order was mailed to Plaintiff at his last-known mailing address, and it was
not returned to the Court as undeliverable. Plaintiff did not comply with the
Court’s Order by the October 31 deadline.
On November 8, 2024, the Court ordered Plaintiff to show cause why this
case should not be dismissed for his failure to comply with the Court’s Order.
(Order to Show Cause, ECF No. 15). His responsive deadline was extended to
November 22, 2024, and he was warned again “[t]hat failure to timely comply with
the requirements of this Order or to advise the Court of a change of address . . . will
result in this lawsuit being dismissed without prejudice and without further notice
to him.” (Id. at 2). The Order to Show Cause, with a copy of the Court’s September
17 and October 17 Orders, was mailed to Plaintiff at his last-known mailing

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address, and it was returned to the Court as undeliverable. (Envelope, ECF No.
16). Plaintiff did not comply with the Court’s Order by the November 22 deadline.
The Court entered a Second and Final Order to Show Cause on December 6,
2024. (Second and Final Order to Show Cause, ECF No. 17). The Court extended
Plaintiff’s responsive deadline to December 20, 2024, and warned him again “[t]hat
failure to timely comply with the requirements of this Order or to advise the Court
of a change of address . . . will result in this lawsuit being dismissed without
prejudice and without further notice to him.” (Id. at 3 (emphasis in original)).
Plaintiff was cautioned that this was his “final opportunity” to comply with the
Court’s Orders. (Id.). The Second and Final Order to Show Cause, with a copy of
the Court’s September 17, October 17, and November 8 Orders, was mailed to
Plaintiff at his last-known mailing address, and it was not returned to the Court as
undeliverable. Plaintiff did not comply with the Second and Final Order to Show
Cause by the December 20 deadline, nor has he notified the Court about a change of
address.
The Court may dismiss an action for a plaintiff’s failure to prosecute under
Federal Rule of Civil Procedure 41(b) and the Court’s “inherent power . . . to
manage [its] own affairs.” Link v. Wabash R.R. Co., 370 U.S. 626, 630–31 (1962)
(quotation omitted); see also McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir.
1988). The Court must be able to clear its calendar “of cases that have remained
dormant because of the inaction or dilatoriness of the parties seeking relief . . . to
achieve the orderly and expeditious disposition of cases.” Link, 370 U.S. at 630-31.

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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 District Courts.” Id.
at 629–30.
This record reflects that lesser sanctions than dismissal have not prompted
“diligent prosecution” but have instead “proved to be futile.” See Tello v. Comm’r,
410 F.3d 743, 744 (5th Cir. 2005) (quoting Berry v. CIGNA/RSI-CIGNA, 975 F.2d
1188, 1191 (5th Cir. 1992)). Plaintiff did not comply with four Court Orders, after
being warned ten times that failing to do so may lead to the dismissal of this case.
(Order at 2, ECF No. 3; Order to Show Cause at 2, ECF No. 4; Order at 2, ECF No.
6; Order to Show Cause at 2, ECF No. 8; Second and Final Order to Show Cause at
3, ECF No. 9; Order Setting Payment Schedule at 3, ECF No. 11; Order Requiring
Plaintiff to Respond at 2, ECF No. 12; Order Granting Extension of Time Within
Which to Respond at 1, ECF No. 14; Order to Show Cause at 2, ECF No. 15; Second
and Final Order to Show Cause at 3, ECF No. 17). Despite these warnings, Plaintiff
has not contacted the Court or taken any action in this case since October 4, 2024.
Given his clear record of delay and contumacious conduct, it is apparent that
Plaintiff no longer wishes to pursue this lawsuit. Dismissal without prejudice is
warranted. See, e.g., Rice v. Doe, 306 F. App’x 144, 146 (5th Cir. 2009) (affirming
sua sponte dismissal of pro se prisoner case for failure to comply with district court’s
order).
IT IS THEREFORE ORDERED AND ADJUDGED that this civil action is
DISMISSED WITHOUT PREJUDICE.

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SO ORDERED AND ADJUDGED this the 3rd day of January, 2025.
s/

Louis Guirola, Jr.

LOUIS GUIROLA, JR.
UNITED STATES DISTRICT JUDGE

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