Boyd v. Everett et al

Filing 30

ORDER ADOPTING REPORT AND RECOMMENDATIONS 29 - FURTHER ORDERED that plaintiff James Boyd's Complaint 1 is DISMISSED WITHOUT PREJUDICE. A Final Judgment dismissing this case without prejudice shall be entered of even date herewith. Signed by Honorable David C. Bramlette, III on 6/7/2018 (ND)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
JAMES BOYD

PLAINTIFF

VS.

CIVIL NO. 3:17-cv-182(DCB)

LISA EVERETT, ET AL.

DEFENDANTS

ORDER ADOPTING REPORT AND RECOMMENDATION
This cause is before the Court on a Report and Recommendation
of Magistrate Judge Linda R. Anderson (docket entry 29). This case
was set for a Spears hearing or omnibus hearing to be held on
February 15, 2018.

A writ of habeas corpus ad testificandum was

issued to the Warden of the East Mississippi Correctional Facility
(“EMCF”) for the plaintiff, James Boyd (“Boyd”), to be transported
to the hearing.

The Order setting the hearing was returned to the

Court by the United States Post Office as undeliverable.
On January 12, 2018, a United States Deputy Marshal called to
inform the Court that EMCF officials had notified him that Boyd had
been released.

Also on January 12, 2018, a copy of the Order

setting the hearing was then mailed to the only address for Boyd in
EMCF’s

possession

(4319

Highway

12

East,

Steens,

Mississippi

39766).
The plaintiff failed to appear at the February 15 hearing, and
did not contact the Court to request a continuance or explain his
absence. The notice of hearing has not been returned by the United
States Postal Service.

The Court presumes that the plaintiff

received the notice but chose not to attend.
Magistrate Judge Anderson advised Boyd of his responsibility
to prosecute his claims in Court Orders (docket entries 11 and 16),
and he was warned that failure to advise the Court of a change of
address, or failure to comply with any Order of the Court, would be
deemed as purposeful delay and a contumacious act, and could result
in the dismissal of his case (docket entry 11).
In addition, Boyd’s failure to attend the scheduled hearing,
and his failure to contact the Court after his release, has caused
the defendants to incur unnecessary attorneys’ fees and costs.
The plaintiff has failed to abide by the Orders of the Court,
due to his failure to attend the hearing.

Rule 41(b) of the

Federal Rules of Civil Procedure provides:
Involuntary Dismissal; Effect. 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. Unless the dismissal order states otherwise,
a dismissal under this subdivision (b) and any dismissal
not under this rule ... operates as an adjudication on
the merits.
Fed.R.Civ.P. 41(b).
Magistrate Judge Anderson points out that this Court has the
authority to dismiss an action for failure of a plaintiff to
prosecute or to comply with any Order of the Court, both under
Fed.R.Civ.P.

41(b)

and

under

its

inherent

authority.

See

McCullough v. Lynaugh, 835 F.2d 1126 (5th Cir. 1988); Link v. Wabash
R.R. Co., 370 U.S. 626, 630-31 (1962).

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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.

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.

Link, supra, 370 U.S. at 630.

The actions

of the plaintiff also prejudice the rights of the defendants to
promptly and fully defend the claims made against them.
Whether or not a plaintiff is pro se, or incarcerated, he
still has an obligation to inform the Court of any address changes.
“Every attorney and every litigant proceeding without legal counsel
has a continuing obligation to notify the clerk of court of address
changes.”

See Local Rule 11(a); Wade v. Farmers Ins. Group, 2002

WL 1868133, at *1, n.12 (5th Cir. June 26, 2002)(on appeal from
district

court’s

denial

of

a

motion

for

reconsideration

of

dismissal for failure to prosecute - even incarcerated litigants
must inform the court of address changes).

If the plaintiff has

changed his address, and did not receive the notice of the hearing
at the address he provided the Clerk, then his failure to advise
the Court of that change prevents the Court from moving this case
forward.
A dismissal of a plaintiff’s lawsuit for failing to comply
with a district court’s order is warranted where “[a] clear record
of delay or contumacious conduct by plaintiff exists.”

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Day v.

Allstate Ins. Co., 788 F.2d 1110 (5th Cir. 2008)(quoting Anthony v.
Marion County General Hospital, 617 F.2d 1164, 1167 (5th Cir.
1980)).

The record in this case clearly supports such a finding.

The plaintiff obviously lost interest in pursuing his lawsuit after
his release from prison, although he has not formally dismissed his
Complaint.

The sanction of dismissal is necessary in order to

officially conclude the litigation against the defendants.
The Court agrees with the Magistrate Judge’s Report and
Recommendation

that

Boyd’s

action

be

dismissed

pursuant

to

Fed.R.Civ.P. 41(b) without prejudice.
Accordingly,
IT IS HEREBY ORDERED that Magistrate Judge Linda R. Anderson’s
Report and Recommendation (docket entry 29) is ADOPTED as the
findings and conclusions of this Court;
FURTHER ORDERED that plaintiff James Boyd’s Complaint (docket
entry 1) is DISMISSED WITHOUT PREJUDICE.
A Final Judgment dismissing this case without prejudice shall
be entered of even date herewith.
SO ORDERED, this the 7th day of June, 2018.

/s/ David Bramlette
UNITED STATES DISTRICT JUDGE

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