South v. Walker et al

Filing 40

ORDER granting 37 Motion to Dismiss. Signed by Magistrate Judge Michael T. Parker on July 1, 2015. (ES)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
BRADLEY WAYNE SOUTH

PLAINTIFF

v.

CIVIL ACTION NO. 5:14cv30-MTP

MAJOR UNKNOWN WALKER &
DR. JAMES BURKE

DEFENDANTS

OPINION AND ORDER
THIS MATTER is before the Court on the Motion to Dismiss [37] filed by Defendant James
Burke. The Plaintiff, proceeding pro se and in forma pauperis, filed his civil rights Complaint [1]
on or about March 25, 2014. Based on the record in this case and the applicable law, the Court finds
that this action should be dismissed without prejudice.
Pursuant to Federal Rule of Civil Procedure 41(b), a defendant may move to dismiss a cause
of action for the plaintiff’s failure to prosecute or comply with any order of the court. The Court
may also “dismiss an action sua sponte under Rule 41(b) for failure to comply with a court order or
whenever necessary to ‘achieve the orderly and expeditious disposition of cases.’” See Link v.
Wabash R.R. Co., 370 U.S. 626, 629-30 (1962).
Moreover, the Plaintiff–incarcerated or not–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.” U. L. Civ. R. 11.1; see also
Wade v. Farmers Ins. Group, No. 01-20805, 2002 WL 1868133, at *1, n.12 (5th Cir. June 26, 2002)
(affirming district court’s denial of motion for reconsideration of dismissal for failure to prosecute,
noting that “it is the responsibility of even incarcerated litigants to inform the court of a change of
address”). This burden may not be shifted from the Plaintiff, as it is “neither feasible nor legally
required that the clerks of the district courts undertake independently to maintain current addresses

on all parties to pending actions. It is incumbent upon litigants to inform the clerk of address
changes, for it is manifest that communications between the clerk and the parties or their counsel
will be conducted principally by mail.” Ainsworth v. Payne, No. 1:05cv297LG-JMR, 2006 WL
2912571, at *1 (S.D. Miss. October 10, 2006) (quoting Perkins v. King, No. 84-3310, 759 F.2d 19
(Table), slip op. at 4 (5th Cir. March 19, 1985)). As set forth below, this case exemplifies the type
of inaction that warrants Rule 41(b) dismissal.
On April 29, 2015, Defendant Burke filed the instant motion to dismiss, stating that he had
sent Plaintiff a copy of a recent pleading in this matter, but that the communication was returned to
him with the notations “Returned to Sender” and “Unable to Forward.” See Motion [37]. Defendant
Burke also asserts that he has learned from the inmate locator office at SMCI that Plaintiff was
released from custody in November 2014.
The Court issued a show cause order [38] to the Plaintiff on May 18, 2015, directing him to
show cause in writing on or before June 1, 2015, why this case should not be dismissed or to confirm
his current address by filing an appropriate notice with the Court. The Plaintiff did not respond. The
Court issued a final show cause order [39] to the Plaintiff on June 9, 2015, again directing him to
show cause in writing or to confirm his current address by June 22, 2015. See Order [39]. This
deadline has now expired, and Plaintiff has failed to respond to the Court’s orders.
With its clear record of delay, this case may properly be dismissed under Rule 41(b). Hejl
v. State of Texas, 664 F.2d 1273, 1274-75 (5th Cir. 1982); see also Larson v. Scott, 157 F.3d 1030,
1032 (5th Cir. 1998) (affirming dismissal where plaintiff had been warned that dismissal could result
from his failure to comply with court order); Balawajder v. Parker, 56 F.3d 1386 (5th Cir. 1995).
The Plaintiff has not notified the Court of a recent change of address, although he has been warned
several times that a failure to do so could result in the dismissal of this matter. See Orders [3] [4] [8]

[11] [13] [18] [38] [39]. Plaintiff also has not inquired as to the status of his case1 or otherwise
communicated with the Court since his appearance at the omnibus hearing held on October 7, 2014.
See Omnibus Order [23]. From this it appears that Plaintiff has lost interest in proceeding with this
action and has abandoned it.
As Plaintiff has failed in his obligation to prosecute his case and to comply with the Court’s
orders, the Court finds that Defendant’s Motion [37] should be granted, and that this action should
be dismissed.
IT IS, THEREFORE, ORDERED:
1.

That the Motion to Dismiss [37] filed by Defendant James Burke is GRANTED.
That this matter be DISMISSED without prejudice pursuant to Federal Rule of Civil
Procedure 41(b).

2.

A separate judgment in accordance with Federal Rule of Civil Procedure 58 will be
entered.

SO ORDERED this the 1st of June, 2015.
s/ Michael T. Parker
United States Magistrate Judge

1

See Ainsworth v. Payne, No. 1:05cv297-LG-JMR, 2006 WL 2912571, at *1 (S.D. Miss.
Oct. 10, 2006) (quoting Perkins v. King, No. 84-3310, 759 F.2d 19 (Table), slip op. at 4 (5th Cir.
March 19, 1985)) (“In addition to keeping the clerk informed of any change of address, parties
are obliged to make timely status inquires. Address changes normally would be reflected by
those inquiries if made in writing.”)