Hoskins v. McDonald et al

Filing 6

MEMORANDUM OPINION AND ORDER dismissing this action for Plaintiffs failure to prosecute and failure to comply with the Orders of the Court under Rule 41(b) of the Federal Rules of Civil Procedure. A Final Judgment in accordance with this Memorandum Opinion and Order will be entered. Signed by District Judge Carlton W. Reeves on 12/19/2013. (JS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
OCIE HOSKINS, #75124
VERSUS

PLAINTIFF
CIVIL ACTION NO. 3:13-cv-501-CWR-FKB

DORIS MCDONALD and UNKNOWN JACKSON

DEFENDANTS

MEMORANDUM OPINION and ORDER
Plaintiff, an inmate of the Mississippi Department of Corrections, filed a pro se Complaint
pursuant to 42 U.S.C. § 1983. On August 21, 2013, this Court entered an Order [3] advising the
Plaintiff of the consequences of filing this action under the Prison Litigation Reform Act. The Order
directed the Plaintiff to file either a notice of voluntary dismissal or a written response stating that
he wishes to continue with this case, within thirty days. The Plaintiff was warned that his failure to
timely comply with the requirements of the Order may result in the dismissal of this case. The
Plaintiff failed to comply with the Order [3] of August 21, 2013.
On October 17, 2013, an Order [4] was entered directing the Plaintiff to show cause, on or
before November 1, 2013, why this case should not be dismissed for his failure to comply with the
Court’s August 21, 2013 Order. In addition, Plaintiff was directed to comply with the Order by
filing a notice of voluntary dismissal or a written response stating that he wishes to continue with
this case, on or before November 1, 2013. The Show Cause Order warned Plaintiff that failure to
timely comply with the requirements of the Order would lead to the dismissal of his Complaint,
without further notice. Plaintiff did not comply with the Show Cause Order.
Since Plaintiff 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 November 18, 2013, the

Court entered a Final Order to Show Cause [5] directing Plaintiff to show cause why this case should
not be dismissed for his failure to comply with the Orders of August 21, 2013, and October 17, 2013.
In addition, Plaintiff was directed to comply with the previous Orders, on or before December 3,
2013. The Final Order to Show Cause [5] also warned Plaintiff that his failure to timely comply with
the Order or his failure to keep this Court informed of his current address would result in the
dismissal of this case without further written notice to the Plaintiff.
Plaintiff has not contacted the Court regarding this case since the case was filed on August 20,
2013. This Court has the authority to dismiss an action 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 to dismiss the action sua sponte. 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 calendars 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 “sanction 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.
Plaintiff has failed to comply with three court orders. As the record demonstrates, lesser
sanctions than dismissal have not prompted “diligent prosecution” but instead such efforts have
proven futile. See Tello v. Comm’r., 410 F.3d 743, 744 (5th Cir. 2005). Therefore, the Court
concludes that dismissal of this action for Plaintiff’s failure to prosecute and failure to comply with
the Orders of the Court under Rule 41(b) of the Federal Rules of Civil Procedure is proper. See Rice
v. Doe, No. 08-20381, 2009 WL 46882, at *1(5th Cir. Jan. 8, 2009)(affirming dismissal of prisoner’s
case for failure to comply with court orders). Since the Defendants have not been called on to
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respond to Plaintiff’s pleading, and the Court has not considered the merits of Plaintiff'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).
A Final Judgment in accordance with this Memorandum Opinion and Order will be entered.
SO ORDERED, this the 19th day of December, 2013.
s/Carlton W. Reeves
UNITED STATES DISTRICT JUDGE

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