Hudson v. Moore et al, No. 4:2008cv00143 - Document 7 (S.D. Miss. 2009)

Court Description: MEMORANDUM OPINION AND ORDER. Signed by District Judge Henry T. Wingate on 5/29/09 (SM)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI EASTERN DIVISION FREDRICK SHAWNTA HUDSON VERSUS PLAINTIFF CIVIL ACTION NO. 4:08-cv-143-HTW-LRA JAMES MOORE, SR. et al. DEFENDANTS MEMORANDUM OPINION AND ORDER This cause comes before this Court sua sponte for consideration of dismissal. On December 16, 2008, two orders were entered in this action. One order [4] directed Plaintiff to pay the required $350.00 filing fee or file a completed in forma pauperis application, within thirty days. The other order [3] directed Plaintiff to sign and return to this Court an Acknowledgment of Receipt and Certification (Form PSP-3) or a Notice of Voluntary Dismissal (Form PSP-4), within thirty days. Plaintiff has failed to comply with both of the orders. Plaintiff was warned in these Court orders that failure to advise this Court of a change of address or failure to timely comply with the requirements of the orders may lead to the dismissal of his complaint. On February 13, 2009, an order [5] was entered directing Plaintiff to show cause, on or before March 2, 2009, why this case should not be dismissed for his failure to timely comply with the Court's December 16, 2008 orders. In addition, Plaintiff was directed to comply with the December 16, 2008 orders by filing the required documentation, on or before March 2, 2009. The show cause order warned Plaintiff that failure to timely comply with the requirements of the orders would lead to the dismissal of his complaint. Plaintiff did not comply with the Court's orders. On March 20, 2009, this Court entered a second order [6] directing the Plaintiff to show cause why this case should not be dismissed for his failure to comply with the Court's orders of December 16, 2008. In addition, Plaintiff was directed to comply with the December 16, 2008 orders on or before April 6, 2009. The Plaintiff was warned in this Court's order of March 20, 2009, that failure to advise this Court of a change of address or failure to timely comply with the requirements of the orders may result in this cause being dismissed. Plaintiff has failed to comply with this order. 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 Plaintiff has not complied with four Court orders nor has he contacted this Court since December 15, 2008. The Court concludes that dismissal of this action for Plaintiff s failure to prosecute under FED.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, the Court's order of dismissal will provide that dismissal is without prejudice. See Munday/Elkins Auto. Partners, LTD. v. Smith, No. 05-31009, 2006 WL 2852389, at *2 (5th Cir. Oct. 2, 2006). 2 IT IS THEREFORE ORDERED AND ADJUDGED that the Plaintiff's complaint shall be dismissed without prejudice. A Final Judgment in accordance with this Memorandum Opinion and Order will be entered. SO ORDERED, this the 29th day of May, 2009. s/ HENRY T. WINGATE CHIEF UNITED STATES DISTRICT JUDGE Civil Action No. 4:08-cv-143 HTW-LRA Memorandum Opinion and Order 4:08-cv-143-HTW-LRA 3

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