Coleman v. Sweetin et al
MEMORANDUM OPINION AND ORDER OF DISMISSAL. Plaintiff's claim against Defendant Cheryl McManus are DISMISSED without prejudice for want of prosecution and failure to obey an order. The statute of limitations for the Plaintiff's claim against Defendant McManus is suspended for thirty days from the entry of this order. The complaint is dismissed and all pending motions are denied. Signed by Magistrate Judge Judith K. Guthrie on 11/28/11. (ljw, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
FREDDIE R. COLEMAN, #618875
DAVID SWEETIN, ET AL.
CIVIL ACTION NO. 9:10cv135
MEMORANDUM OPINION AND
ORDER OF DISMISSAL
Plaintiff Freddie R. Coleman, a prisoner confined at the Eastham Unit of the Texas prison
system, proceeding pro se and in forma pauperis, filed the above-styled and numbered 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).
On May 12, 2011, the Court issued an Order of Partial Dismissal (docket entry #23) permitting
the Plaintiff to proceed with his claims against Defendant McManus. The Plaintiff’s claims against
all of the other Defendants were dismissed pursuant to 28 U.S.C. § 1915A(b)(1). Defendant McManus
was ordered to answer or otherwise plead to the Plaintiff’s claim that she was deliberately indifferent
to his serious medical needs. The order was sent to the Office of the Texas Attorney General (OAG).
On May 31, 2011, the OAG notified the Court that it had been unable to contact McManus and
did not have authority to represent her. McManus’ last known address was provided under seal.
Summons was issued using the last known address. On September 29, 2011, the summons was
returned unexecuted by the United States Marshals Service.
On October 5, 2011, the Plaintiff was ordered to submit the current address for McManus. He
was given twenty days from the receipt of the order to comply with it. He was informed that the
claims against McManus would possibly be dismissed if he failed to comply with the order. The Court
received an acknowledgment from the Plaintiff indicating that he received the order on October 12,
2011. The Plaintiff was obligated to provide the current address for McManus by November 1, 2011.
He has not, however, provided her current address.
On October 24, 2011, the Court granted the Plaintiff an extension of time to provide McManus’
current address. The deadline for the Plaintiff to supply the address was extended to November 22,
2011. He was warned that no other extensions of time would be granted and the case would be
dismissed if he failed to comply with the order. The Court received an acknowledgment from him
indicating that he received the order on October 31, 2011. As of today, however, he has not provided
McManus’ current address or otherwise been in contact with the Court.
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). The
exercise of the power to dismiss a case for failure to prosecute or obey a court order is committed to
the sound discretion of the Court and appellate review is confined solely in whether the Court's
discretion was abused. Green v. Forney Engineering Co., 589 F.2d 243 (5th Cir. 1979); Lopez v.
Aransas County Independent School District, 570 F.2d 541 (5th Cir. 1978). Not only may a district
court dismiss for want of prosecution upon motion of a defendant, but it may also, sua sponte, dismiss
an action whenever necessary to achieve the orderly and expeditious disposition of cases. Anthony v.
Marion County General Hospital, 617 F.2d 1164 (5th Cir. 1980).
Dismissal with prejudice for failure to obey an order or failure to prosecute is an extreme
sanction which should be employed only when the “plaintiff's conduct has threatened the integrity of
the judicial process [in a way which] leav[es] the court no choice but to deny that plaintiff its benefit.”
McNeal v. Papasan, 842 F.2d 787, 790 (5th Cir. 1988) (citing Rogers v. Kroger Co., 669 F.2d 317,
321 (5th Cir. 1982)). A court should consider lesser sanctions, such as fines, costs, damages,
conditional dismissals and dismissals without prejudice, among other lesser measures, prior to
dismissing a case with prejudice. Id. at 793. The explanation for employing a dismissal with prejudice
should be stated on the record. Id.
In the present case, the Plaintiff has not to complied with the Court's order in order to proceed
with the case. The Plaintiff’s failure to comply with his duty to provide the Court with a current and
accurate address for Defendant McManus makes it impossible for the case to proceed and disrupts the
orderly progression of the case. Ordinarily a dismissal with prejudice would be inappropriate. The
Plaintiff complained about an incident that occurred on June 23, 2009. A dismissal without prejudice
would be a de facto dismissal with prejudice because of the statute of limitations. A fine would not
be appropriate as a sanction since the Plaintiff is proceeding in forma pauperis. Apparently he does
not have the money to pay any fines imposed. A dismissal without prejudice is the best option
available at this time. The statute of limitations should be suspended for thirty days after the entry of
this order in the event that the Plaintiff obtains the correct address for McManus and decides to file
a new lawsuit against her. It is therefore
ORDERED that the Plaintiff’s claim against Defendant Cheryl McManus is DISMISSED
without prejudice for want of prosecution and failure to obey an order. Fed. R. Civ. P. 41(b); Rule
41, Local Rules for the Eastern District of Texas. It is further
ORDERED that the statute of limitations for the Plaintiff’s claim against Defendant McManus
is suspended for thirty days from the entry of this order. It is further
ORDERED that the complaint is DISMISSED. It is finally
ORDERED that all motions not previously ruled on are DENIED.
So ORDERED and SIGNED this 28 day of November, 2011.
JUDITH K. GUTHRIE
UNITED STATES MAGISTRATE JUDGE
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