Davis v. EMCF Commissary Canteen Dept. et al
MEMORANDUM AND OPINION for plaintiff's failure to prosecute and failure to comply with the orders of the Court. The Court's order of dismissal is without prejudice. A Final Judgment in accordance with this Memorandum Opiniion will be entered. Signed by District Judge Henry T. Wingate on 4/28/11 (TRS)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JIMMY DAVIS, #51030
CIVIL ACTION NO. 4:10-cv-217-HTW-LRA
EMCF COMMISSARY CANTEEN DEPT., et al.
Plaintiff, an inmate of the Mississippi Department of Corrections, filed on December
27, 2010, a complaint pursuant to 42 U.S.C. § 1983 and requested in forma pauperis status.
On December 29, 2010, two Orders [3, 4] were entered in this case. One order directed
Plaintiff to pay the required $350.00 filing fee or file a completed in forma pauperis
application, within thirty days. The other Order directed Plaintiff to sign and return to this
Court an Acknowledgment of Receipt and Certification (Form PSP-3) or a Notice of
Voluntary Dismissal (Form PSP-4), within thirty days. Plaintiff was warned that failure to
timely comply with any Order of this Court may lead to the dismissal of his case. Plaintiff
failed to comply with both of these Orders.
On February 25, 2011, an Order  was entered directing Plaintiff to show cause, on or
before March 18, 2011, why this case should not be dismissed for his failure to comply with
the Court's Orders of December 29, 2010. In addition, Plaintiff was directed to comply with
the Orders of December 29, 2010, by filing the required documentation, on or before March
18, 2011. 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 failed to comply with the Show Cause Order.
Since Plaintiff is proceeding pro se, he was provided one final opportunity to comply
with the Court’s Orders. On April 4, 2011, a Final Order to Show Cause  was entered in
this case. Plaintiff was directed to show cause, on or before April 19, 2011, why this case
should not be dismissed for his failure to comply with the Court's Orders of December 29,
2010, and February 25, 2011. In addition, Plaintiff was directed to comply with the previous
Orders by filing the required documentation, on or before April 19, 2011. The Final Order to
Show Cause  warned Plaintiff that failure to keep this Court informed of his current
address or failure to timely comply with the requirements of the Order would lead to the
dismissal of his complaint, without further notice. Plaintiff has not complied with the Final
Order to Show Cause.
Plaintiff has failed to comply with four Court orders and he has not contacted this Court
since December 27, 2010. 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.
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, 306 F. App’x 144 (5th Cir. 2009). Since the
Defendants have not been called on to 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 will be entered.
THIS the 28th day of April, 2011.
s/ HENRY T. WINGATE
UNITED STATES DISTRICT JUDGE
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