Kossie v. Wood et al

Filing 12

MEMORANDUM OPINION and ORDER OF DISMISSAL. It is ordered that the complaint is DISMISSED without prejudice pursuant to FRCP 41(b). All motions not previously ruled on are DENIED. Signed by Magistrate Judge Judith K. Guthrie on 6/21/2012. (leh, )

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TYLER DIVISION DARRELL KOSSIE, #1250763 § VS. § DAVID WOOD, ET AL. § CIVIL ACTION NO. 6:12cv249 MEMORANDUM OPINION AND ORDER OF DISMISSAL Plaintiff Darrell Kossie, a prisoner confined at the Michael Unit of the Texas prison system, proceeding pro se and in forma pauperis, filed this civil rights lawsuit pursuant to 42 U.S.C. § 1983. The complaint was transferred to the undersigned with the consent of the parties pursuant to 28 U.S.C. § 636(c). The original complaint was filed on April 3, 2012. After reviewing the complaint, the Court concluded that an evidentiary hearing should be conducted consistent with Spears v. McCotter, 766 F.2d 179, 182 (5th Cir. 1985). A Spears hearing is a proceeding which allows a litigant to offer sworn testimony in support of his allegations and to give him every opportunity to explain the nature of his claims. A Spears hearing is appropriate “to dig beneath the conclusional allegations; to reduce the level of abstraction upon which the claims rest; to ascertain exactly what scenario the prisoner claims occurred, as well as the legal basis for the claim.” Id. at 180. The hearing is “in the nature of a motion for more definite statement.” Id. at 180-181. It serves to implement the congressional intent of meaningful access to court for indigent litigants, and also to allow the district court to winnow out the wheat from the unusual amount of chaff necessarily presented in a system which fosters pro se litigation. Wilson v. Barrientos, 926 F.2d 480, 482 (5th Cir. 1991) (citations omitted). 1 The Spears hearing was convened on June 21, 2012. Assistant Warden Dwayne Dewberry, Regional Grievance Coordinator Laurie Parker and Nurse Kathy Grey were present during the hearing and were available to testify under oath about prison policies and information contained in Plaintiff’s prison records. Plaintiff, however, refused to testify and discuss the factual basis of his claims. He was repeatedly warned that the lawsuit would be dismissed if he refused to testify; nonetheless, he persisted in refusing to give any testimony. A district court may dismiss an action for failure to prosecute or to comply with any order of the court. McCullough v. Lynaugh, 835 F.2d 1126 (5th Cir. 1988); Fed. R. Civ. P. 41(b). Plaintiff steadfastly refused to testify and to proceed with the case. He persisted in refusing to testify despite being repeatedly warned that the lawsuit would be dismissed if he did not testify. Consequently, the case should be dismissed. It is therefore ORDERED that the complaint is DISMISSED without prejudice pursuant to Fed. R. Civ. P. 41(b). It is further ORDERED that all motions not previously ruled on are DENIED. So ORDERED and SIGNED this 21 day of June, 2012. ____________________________ JUDITH K. GUTHRIE UNITED STATES MAGISTRATE JUDGE 2

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