Milliron v. Lain et al

Filing 33

MEMORANDUM OPINION AND ORDER OF DISMISSAL - ORDERED that the complaint is DISMISSED without prejudice for want of prosecution. Fed. R. Civ. P. 41; Rule 41, Local Rules for the Eastern District of Texas. All motions not previously ruled on are DENIED. Signed by Magistrate Judge Charles Everingham on 8/5/09. (ch, )

IN THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF TEXAS M A R S H A LL DIVISION

JE S S E LYN MILLIRON VS. R A N D A LL LAIN, ET AL.

§ § § M E M O R A N D U M OPINION AND O R D E R OF DISMISSAL C IV IL ACTION NO. 2:08cv447

P lain tiff Jesse Lyn Milliron, previously a prisoner confined in the Camp County Jail, p ro ceed in g pro se and in forma pauperis, filed the above-styled and numbered civil rights lawsuit p u rsu an t to 42 U.S.C. § 1983. The complaint was transferred to the undersigned with the consent of th e parties pursuant to 28 U.S.C. § 636(c). O n June 30, 2009, the Court issued an order to the Plaintiff giving him a deadline to explain w h y the case should not be dismissed for failure to comply with the Scheduling Order. More sp ecifically, he failed to submit the requisite witness and exhibit lists. The letter containing the order w as mailed to the Plaintiff at his last known address, which was the Henderson County Jail. On July 7 , 2009, the letter was returned with the notation that the Plaintiff had not been confined in the H en d erso n County Jail since April 14, 2009. The Plaintiff's whereabouts are unknown. As of today, th e Plaintiff has not provided the Court with a new address. He has failed to prosecute this case. T h e exercise of the power to dismiss for failure to prosecute is committed to the sound d iscretio n of the Court and appellate review is confined solely in whether the Court's discretion was ab u sed . Green v. Forney Engineering Co., 589 F.2d 243 (5th Cir. 1979); Lopez v. Aransas County

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Independent School District, 570 F.2d 541 (5th Cir. 1978). Not only may a district court dismiss for w an t of prosecution upon motion of a defendant, but it may also, sua sponte, dismiss an action w h en ev er necessary to achieve the orderly and expeditious disposition of cases. Anthony v. Marion C o u n ty General Hospital, 617 F.2d 1164 (5th Cir. 1980). The present case should be dismissed. It is accordingly O R D E R E D that the complaint is DISMISSED without prejudice for want of prosecution. Fed. R. Civ. P. 41; Rule 41, Local Rules for the Eastern District of Texas. All motions not previously ru led on are DENIED.

SIGNED this 5th day of August, 2009.

___________________________________ CHARLES EVERINGHAM IV UNITED STATES MAGISTRATE JUDGE

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