Betts v. Wolfgram et al

Filing 15

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that the motion of Defendant Dr. Edwin Wolfgram to dismiss Plaintiffs complaint for failure to prosecute is GRANTED. (ECF No. 10 .) Signed by District Judge Audrey G. Fleissig on 12/13/2018. (KCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
LAWRENCE SHARRON BETTS,
Plaintiff,
vs.
DR. EDWIN WOLFGRAM,
Defendant.

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Case No. 4:17CV00298 AGF

MEMORANDUM AND ORDER
This matter is before the Court on the motion of Defendant Dr. Edwin Wolfgram,
filed on August 10, 2017, to dismiss the case without prejudice for Plaintiff’s failure to
prosecute. More specifically, Defendant asks for dismissal based on Plaintiff’s failure to
notify the Court of his current address. Plaintiff filed this action pro se and in forma
pauperis on January 26, 2017. He alleged that while a detainee, he was forced by
Defendant (the only Defendant to survive review under 28 U.S.C. § 1915(d)) to take
medication he did not want or need.
The docket sheet indicates that on April 17, 2017, the Court’s Case Management
Order (“CMO”) that was mailed to Plaintiff was returned as undeliverable. Thereafter, a
new address for Plaintiff was obtained from Defendant’s counsel. The new address was
entered as Plaintiff’s address of record, and the CMO was resent to this new address on
April 17, 2017. The docket sheet does not indicate that this mailing was returned to the
Court. However, Defendant now states that he attempted to send his initial disclosures
and discovery to Plaintiff at the new address of record, as well as at Plaintiff’s initial

address, and both mailings were returned with no forwarding address. This assertion is
not supported by an affidavit or other evidence.
Defendant’s certificate of service accompanying his present motion to dismiss
shows that the motion to dismiss was mailed to Plaintiff’s new address of record. There
was no further activity in the case until September 29, 2017, on which date the Court
issued a Show Cause Order granting Plaintiff 14 days from of the date the Order to show
cause why the case should not be dismissed without prejudice. The Court directed the
Clerk’s Office to mail the Order to Plaintiff’s address of record, and cautioned Plaintiff
that his failure to respond to the Order would result in dismissal of the case without
prejudice.
The record reflects that the Court’s Order to show cause that was mailed by the
Court to Plaintiff’s new address of record was returned as undeliverable on October 10,
2017, and was resent that same day to an address the Clerk’s Office obtained from the
Missouri Department of Corrections Offender Search website. As the docket sheet
reflects, the Court made a subsequent attempt to mail a second show cause order to
Plaintiff on November 15, 2017, at an address provided by phone by Plaintiff. This
Order was returned as undeliverable on November 21, 2017. There has been no further
activity in the case.
Based on this record, the Court believes that the unopposed motion to dismiss
without prejudice should be granted. The Court’s Local Rule 45- 2.06(B) requires pro se
parties to promptly notify the Clerk of Court and all other parties to the proceedings of
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any change in address and telephone number. In addition, the case is properly dismissed
for failure to prosecute, under Federal Rule of Civil Procedure 41. See, e.g., Fate v. Doe,
No. 07 Civ. 9256, 2008 WL 17522203, at *2 (S.D.N.Y. Apr. 16, 2008) (“Courts have
repeatedly recognized that dismissal for failure to prosecute is appropriate where a
plaintiff effectively disappears by failing to provide a current address at which he or she
can be reached.”)
Accordingly,
IT IS HEREBY ORDERED that the motion of Defendant Dr. Edwin Wolfgram
to dismiss Plaintiff’s complaint for failure to prosecute is GRANTED. (ECF No. 10.)
All claims against all Defendants having been resolved, a separate Order of
Dismissal without prejudice will accompany this Memorandum and Order.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 13th day of December, 2017.

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