Jefferson v. NFN Jacks

Filing 8

MEMORANDUM AND OPINION. This action shall be dismissed, without prejudice, for Plaintiff's failure to prosecute and failure to comply with the orders of the Court. Signed by Honorable David C. Bramlette, III on August 1, 2013.(lda)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
DESHAWN JEFFERSON, #08736-028
VERSUS

PLAINTIFF
CIVIL ACTION NO. 5:13-cv-48-DCB-MTP

NFN JACKS

DEFENDANT
MEMORANDUM OPINION

The Plaintiff, a federal inmate of the Bureau of Prisons, filed on April 1, 2013, a Bivens
Complaint pursuant to 28 U.S.C. § 1331 and requested in forma pauperis status. On April 3,
2013, two Orders were entered in this case. One Order directed the Plaintiff to pay the required
filing fee or file a completed in forma pauperis application, within thirty days. The other Order
directed the 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.
The Plaintiff failed to comply with both of the Orders. The Plaintiff was warned in these Court
Orders that failure to keep the Court informed of his current address or his failure to timely
comply with the requirements of the Orders may lead to the dismissal of his Complaint.
On May 30, 2013, an Order to Show Cause [ECF No. 5] was entered directing Plaintiff to
file a written response showing cause why this case should not be dismissed for his failure to
comply with the Court’s previous Orders. In addition, Plaintiff was directed to file, on or before
June 14, 2013, the required documents as set forth in the April 3, 2013 Orders. Plaintiff was
warned that his failure to keep the Court informed of his current address or his failure to timely
comply with the requirements of the Show Cause Order would lead to the dismissal of this case.
The Plaintiff did not comply with the Show Cause Order.
Since Plaintiff is proceeding pro se, he was provided one additional opportunity to comply

with the Court’s Orders prior to the dismissal of this case. On July 2, 2013, the Court entered a
Final Order to Show Cause [ECF No. 6]. Plaintiff was directed to show cause, on or before July
17, 2013, why this case should not be dismissed for his failure to comply with the Court’s prior
Orders. In addition, Plaintiff was directed to comply with the previous Orders by filing the
required documents on or before July 17, 2013. Consistent with the prior orders, the Final Order
to Show Cause warned Plaintiff that failure to keep the Court informed of his current address or
his failure to timely comply with the requirements of the Order would lead to the dismissal of his
Complaint without further notice. On July 9, 2013, the envelope [ECF No. 7] containing the
Final Order to Show Cause was returned by the postal service with the notation, “return to
sender - addressee unknown.” Plaintiff has not contacted the Court with his current address and
he 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 he filed this case on April 1, 2013. The 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.
As the record demonstrates, the Court’s effort to pursue a lesser sanction than dismissal

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has proven futile. See, e.g., Douglass v. United States, No. 99-11288, 2000 WL 1056125, at *4
(5th Cir. July 20, 2000)(finding unheeded warnings of dismissal to pro se litigant demonstrated
lesser sanctions would not be effective). 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 based on inmate’s failure to
comply with a court order). 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, No.
05-31009, 2006 WL 2852389, at *2 (5th Cir. Oct. 2, 2006).
A Final Judgment in accordance with this Memorandum Opinion will be entered.
THIS, the 1st day of August, 2013.

s/David Bramlette
UNITED STATES DISTRICT JUDGE

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