Fox v. The State of Mississippi et al

Filing 64

ORDER denying 60 Motion to allow complaint to remain and proceed; granting 61 Motion to Dismiss; denying 63 Motion for Hearing. This matter is dismissed with prejudice for failure to prosecute and comply with Court Orders. (Copy mailed to plaintiff at address listed on docket sheet.) Signed by District Judge Carlton W. Reeves on 2/5/2013. (AC)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
CARL FOX, III

PLAINTIFF

v.

CAUSE NO. 3:11-CV-377-CWR-MTP

DAVID SESSUMS; FRED COATS;
PERRY WAGGENER; JOHN SIGMAN;
BENNY FRENCH

DEFENDANTS

ORDER
Before the Court are Carl Fox’s motion “to allow my Complaint to remain and proceed,”
Docket No. 60, the defendants’ motion to dismiss, Docket No. 61, Fox’s response in opposition to
that motion, Docket No. 62, and Fox’s motion for hearing, Docket No. 63.
The relevant factual and procedural history was set forth in this Court’s January 10, 2013,
Order denying another continuance. Docket No. 59. The Order recited that on August 2, 2012, Fox
was ordered to provide Rule 7 replies by September 4. Id. That deadline was twice extended: first
to November 27, and then to January 22, 2013. Id. The multiple extensions meant Fox would not
receive another continuance past January 22. Id. The Court warned that any subsequent failure to
meet deadlines or prosecute this case would result in dismissal of this action. Id.
Since then, Fox has filed three requests for more time, see Docket Nos. 60, 62, 63, but no
Rule 7 reply. Indeed, his response brief includes a string of ad hominem attacks against the opposing
parties and counsel opposite, but he has made no attempt to comply with the previous Orders of this
Court. Docket No. 62.
“If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant
may move to dismiss the action or any claim against it.” Fed. R. Civ. P. 41(b). “A district court sua
sponte may dismiss an action for failure to prosecute or to comply with any court order.” Larson v.
Scott, 157 F.3d 1030, 1031 (5th Cir. 1998) (citing Fed. R. Civ. P. 41(b)). In that case, the Fifth
Circuit affirmed the district court’s dismissal of an action when the plaintiff did not file a document
that had been ordered after having more than four months with which to comply. Id. The appellate
court concluded that “[t]he district court acted well within the bounds of its discretion when it
dismissed for want of prosecution.” Id. at 1032.

It is well-established that the judiciary is empowered to enforce the Federal Rules of Civil
Procedure and Court Orders “so as to achieve the orderly and expeditious disposition of cases.”
Weed v. Epps, No. 3:12-cv-545, 2012 WL 5198333 (S.D. Miss. Oct. 19, 2012) (citation omitted).
Cases that do not move forward, either because the plaintiff no longer wants to pursue the matter
or because the plaintiff declines to file documents he has been ordered to produce, must be dismissed
to prevent undue delays in adjudicating those disputes that do move forward in a timely manner. See
Kirkley v. Spann, No. 3:10-cv-577, 2011 WL 765744 (S.D. Miss. Feb. 25, 2011). As the Supreme
Court has written,
The authority of a federal trial court to dismiss a plaintiff’s action with prejudice
because of his failure to prosecute cannot seriously be doubted. The power to invoke
this 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. The
power is of ancient origin, having its roots in judgments of nonsuit and non
prosequitur entered at common law, and dismissals for want of prosecution of bills
in equity.
Link v. Wabash R. Co., 370 U.S. 626, 629-30 (1962) (citing 3 Blackstone, Commentaries (1768),
295-96).
The Court is not unsympathetic to the plaintiff’s objections and assertions that the defendants
violated his Constitutional rights. But he has not attempted to file his Rule 7 replies. Longstanding
precedent indicates that dismissal is appropriate where, as here, the length of the delay has been
substantial, the plaintiff has been given multiple opportunities to file the ordered documents, and the
plaintiff has been warned that dismissal will result if the ordered documents were not filed after the
extensions.
In accordance with that caselaw, therefore, Fox’s motion to continue is denied, the
defendants’ motion to dismiss is granted, Fox’s motion for hearing is denied, and this matter is
dismissed with prejudice for failure to prosecute and comply with Court Orders. A separate Final
Judgment will issue.
SO ORDERED, this the 5th day of February, 2013.
s/ Carlton W. Reeves
UNITED STATES DISTRICT JUDGE

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