Harris v. Byrd et al
Filing
7
Memorandum Opinion and Order. This action shall be dismissed without prejudice for Plaintiff's failure to prosecute and failure to comply the orders of the Court. Signed by Honorable David C. Bramlette, III on March 4, 2014. (lda)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
CHAYLEN DERRELL HARRIS, #131657
VERSUS
PLAINTIFF
CIVIL ACTION NO. 5:13-cv-200-DCB-MTP
RAYMOND BYRD, et al.
DEFENDANTS
MEMORANDUM OPINION AND ORDER
Plaintiff, an inmate incarcerated at the Wilkinson County Correctional Center, Woodville,
Mississippi, filed on October 17, 2013, the instant complaint pursuant to 42 U.S.C. § 1983 and
requested in forma pauperis status. On October 18, 2013, 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 30 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 30 days. Plaintiff was warned that failure to keep this Court
informed of his current address or failure to timely comply with the requirements of the orders could
lead to the dismissal of his complaint. Plaintiff failed to comply with both of these orders.
The Court then entered on December 17, 2013, an Order to Show Cause [5] directing Plaintiff
to show cause, on or before January 7, 2014, why this case should not be dismissed for his failure
to comply with the Court’s orders [3, 4] of October 18, 2013. In addition, Plaintiff was directed to
comply with the previous orders by filing the required documentation, on or before January 7, 2014.
The Show Cause Order [5] warned Plaintiff that failure to keep this Court informed of his current
address or failure to timely comply with the requirements of the order could lead to the dismissal
of his complaint. Plaintiff failed to comply with the Show Cause Order.
Because Plaintiff is proceeding pro se, he was provided one final opportunity to comply with
the Court’s orders prior to the summary dismissal of this case. On January 22, 2014, a Second and
Final Order to Show Cause [6] was entered in this case. Plaintiff was directed to show cause, on or
before February 14, 2014, why this case should not be dismissed for his failure to comply with the
Court’s orders [3, 4, 5] of October 18, 2013, and December 17, 2013. In addition, Plaintiff was
directed to comply with the previous orders by filing the required documentation, on or before
February 14, 2014. The Second 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 did not comply with the
Second and Final Order to Show Cause.
Plaintiff has not contacted this Court since October 17, 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 generally, 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 four Court orders [3, 4, 5, 6]. 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
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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,
201 F. App’x 265, 267 (5th Cir. 2006).
A Final Judgment in accordance with this Memorandum Opinion will be entered.
This the
4th
day of March, 2014.
s/David Bramlette
UNITED STATES DISTRICT JUDGE
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