Bowling v. Saucia et al, No. 1:2008cv00244 - Document 6 (S.D. Miss. 2008)

Court Description: MEMORANDUM AND OPINION AND ORDER: Ordered that the Plaintiff's Complaint is dismissed without prejudice. A Final Judgment in accordance with this Memorandum Opinion and Order will be entered. Signed by District Judge Louis Guirola, Jr. on 9/19/08. (RLW)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI SOUTHERN DIVISION TIMOTHY RAY BOWLING, #L0142 VERSUS PLAINTIFF CIVIL ACTION NO. 1:08-cv-244-LG-JMR JOHN SAUCIA, et al. DEFENDANTS MEMORANDUM OPINION AND ORDER DISMISSING THE PLAINTIFF'S COMPLAINT The Plaintiff filed this complaint pursuant to 42 U.S.C. § 1983 and requested in forma pauperis status. On June 17, 2008, an order [3] was entered which directed the Plaintiff to sign and return to this Court an Acknowledgment of Receipt and Certification (Form PSP-3), if he wished to continue with this lawsuit or a Notice of Voluntary Dismissal (Form PSP-4), if he did not wish to continue with this lawsuit, within thirty days. The Acknowledgment of Receipt and Certification (Form PSP-3), states in part, [I] have read the above statements [provisions of the PLRA], and fully understand that I am obligated to pay the full filing fee, even if I do not have enough money at this time. I have read the above statements, and fully understand that if this lawsuit is dismissed on grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, I may be barred from filing further lawsuits or appeal a judgment of this Court, and I may lose up to 180 days of earned 'good time' credits, if I am confined within the Mississippi Department of Corrections. Ct. R. 3 p. 5. The Plaintiff was warned in this Court' s order of June 17, 2008, that failure to timely comply with the requirements of the order may lead to the dismissal of his case. The Plaintiff has not complied with this order. On August 19, 2008, an order [5] was entered directing Plaintiff to show cause why this case should not be dismissed for his failure to comply with the Court s June 17, 2008 order. In addition, Plaintiff was directed to comply with the order by filing the required documentation, on or before September 3, 2008. The Plaintiff was warned in this Court' s order of August 19, 2008, that failure to timely comply with the requirements of the order would lead to the dismissal of his case, without further notice. Plaintiff has failed to comply with two Court orders. It is apparent from the Plaintiff' s failure to communicate with this Court that he lacks interest in pursuing this claim. This Court has the authority to dismiss an action for the Plaintiff' s failure to prosecute under Fed.R.Civ.P.41(b) and under its inherent authority to dismiss the action sua sponte. See Link v. Wabash R.R., 370 U.S. 626, 629 (1962); McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988). The Court must be able to clear its calendars of cases that remain dormant because of the inaction or dilatoriness of the parties seeking relief, so as to achieve the orderly and expeditious disposition of cases. Link, 370 U.S. at 630. Such a sanction is necessary in order to prevent undue delays in the disposition of pending cases and to avoid congestion in the calendars of the Court. Id. at 629-30. The Court concludes that dismissal of this action for Plaintiff s failure to prosecute under F ED .R.CIV.P.41(b) is proper. Since the Defendants have never been called upon to respond to the Plaintiff' s pleading, and have never appeared in this action, and since the Court has never considered the merits of Plaintiff' s claims, this case will be dismissed without prejudice. See Munday/Elkins Auto. Partners, LTD. v. Smith, No. 05-31009, 2006 WL 2852389, at *2 (5th Cir. Oct. 2, 2006). IT IS THEREFORE ORDERED AND ADJUDGED that the Plaintiff' s Complaint is 2 DISMISSED without prejudice. A Final Judgment in accordance with this Memorandum Opinion and Order will be entered. SO ORDERED AND ADJUDGED this the 19th day of September, 2008. s/ Louis Guirola, Jr. LOUIS GUIROLA, JR. UNITED STATES DISTRICT JUDGE 1:08-cv-244-LG-RHW 3

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