Green v. Shaw et al

Filing 30

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 29 Report and Recommendations, and dismisses this matter without prejudice. Signed by Honorable David C. Bramlette, III on 06/08/18 (KNS)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
THOMAS PHILLIP GREEN

VS.

PLAINTIFF

CIVIL ACTION NO. 3:17-CV-294-DCB-LRA

WARDEN FRANK SHAW, et al.

DEFENDANTS

ORDER ADOPTING REPORT AND RECOMMENDATION
This cause is before the Court on Magistrate Judge Linda R.
Anderson’s Report and Recommendation (docket entry 29), to which
no objections were filed by the plaintiff.

Having carefully

reviewed the Report and Recommendation, and applicable statutory
and case law, the Court finds that plaintiff’s case should be
dismissed pursuant to Federal Rule of Civil Procedure 41(b) because
of the plaintiff’s failure to prosecute or comply with orders of
the Court.
On April 21, 2017, Thomas Phillip Green (“Green”) filed a
complaint while incarcerated at the East Mississippi Correctional
Facility (“EMCF”). (docket entry 1).

By Order of July 5, 2017,

Green was granted permission to proceed in forma pauperis. (docket
entry 6).

The Court scheduled an omnibus hearing that was held

on February 14, 2018. (docket entry 25).

A writ of habeas corpus

ad testificandum was issued to the Warden at the EMCF for Green to
be transported for the hearing. (docket entry 26).

The Order

setting the hearing was sent to Green, but returned to the Court

by the United States Post Office as undeliverable. (docket entry
27).
On

February

14,

2017,

defense

counsel

Matthew

Walton,

representing all defendants, appeared at the omnibus hearing and
waited for plaintiff to appear.

Green did not attend the hearing,

and did not contact the Court to request a continuance or explain
a conflict with the setting.

After he failed to appear at the

hearing, the defendants made an ore tenus motion to dismiss the
Complaint.

Green was notified of the hearing at the address he

provided to the Court at EMCF, but the Order was returned as
undeliverable.

The Mississippi Department of Corrections website

did not show that he was still in its custody, and he has not
provided the Court with a new address.

The Court has no other way

of contacting him.
On February 16, 2018, Magistrate Judge Anderson filed her
Report and Recommendation.

She opines that the plaintiff failed

to abide by the orders of the Court when he failed to attend the
scheduled

hearing.

The

defendants

have

incurred

unnecessary

attorneys’ fees and costs because of plaintiff’s failure to attend
the scheduled hearing or contact the Court after his release.
actions

of

the

plaintiff

have

also

prejudiced

the

rights

The
of

defendants to promptly and fully defend the claims made against
them.

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The

plaintiff

must

be

willing

to

accordance with the rules of the Court.

prosecute

his

case

in

Rule 41(b) of the Federal

Rules of Civil Procedure provides as follows:
(b) 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 -except one for lack of jurisdiction, improper
venue, or failure to join a party under Rule
19 -- operates as an adjudication on the
merits.
The 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, 630-631 (1962).

The

courts’ power to dismiss complaints pursuant to Rule 41(b) “is
necessary in order to prevent undue delays in the disposition of
pending cases and to . . . clear their calendars of cases that
have remained 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 629-31; see
also Lopez v. Arkansas County Indep. Sch. Dist., 570 F.2d 541, 544
(5th Cir. 1978).
If the plaintiff has changed his address, and did not receive
the notice of hearing at the address he provided the Clerk, then
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his failure to advise the Court of that change prevents the Court
from moving this case forward.

Plaintiff was advised of his

responsibility

claims

to

prosecute

his

and

warned

that

his

“[f]ailure to advise the Court of a change of address or failure
to comply with any order of the Court will be deemed as a purposeful
delay and contumacious act . . . and may result in the dismissal
of this case.” (docket entry 7 and 13).

Whether or not a plaintiff

is pro se, or incarcerated, he has an obligation to inform the
Court of any address changes.

“Every attorney and every litigant

proceeding without counsel has a continuing obligation to notify
the clerk of court of address changes.” See Local Rule 11(a); Wade
v. Farmers Ins. Group, No. 01-20805, 2002 WL 1868133, at *1, n. 12
(5th Cir. June 26, 2002).
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.” 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)).

Although he has not formally dismissed his complaint,

Green has obviously lost interest in pursuing this lawsuit after
his release from the EMCF.

Green’s failure to prosecute this case

is the type of inaction that warrants Rule 41(b) dismissal, and is
necessary in order to officially conclude the litigation against
defendants.
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In her Report and Recommendation, Magistrate Judge Anderson
recommends

that

this

matter

be

DISMISSED

without

prejudice

pursuant to Rule 41(b).
THE COURT HEREBY ADOPTS the Report and Recommendation of
Magistrate Judge Anderson (docket entry 29) as the findings and
conclusions of this Court, and dismisses this matter without
prejudice.
A final judgment shall be entered in accordance with Rule 58
of the Federal Rules of Civil Procedure.
SO ORDERED, this the 8th day of June, 2018.

_/s/ David Bramlette________
UNITED STATES DISTRICT JUDGE

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