United States District Court, W.D. Louisiana, Monroe Division
JAMES REYNOLDS, LA. DOC #590597,
LASALLE MANAGEMENT CO., LLC
REPORT AND RECOMMENDATION
KAREN L. HAYES, Magistrate Judge.
Before the undersigned Magistrate Judge, on reference from the District Court, is a Motion to Dismiss for want of prosecution, [doc. # 40], filed by Defendants Warden Windham, LaSalle Management Company, L.L.C., Nurse Gwen Warren, and Warden Zach Crooks. Plaintiff does not oppose the Motion. For reasons set forth below, it is recommended that the Motion be GRANTED IN PART.
Pro se Plaintiff James Reynolds, proceeding in forma pauperis, first filed suit pursuant to 42 U.S.C. § 1983 on November 29, 2012. [doc. # 1]. He filed an amended complaint on February 22, 2013, pursuant to the Court's January 24, 2013 Order. [doc. # 10]. On March 25, 2013, the Court granted Plaintiff's Motion to Enroll Counsel. [doc. # 15]. Counsel for Plaintiff then filed a second amended Complaint ("the Complaint") on April 30, 2013. [doc. # 16].
On April 10, 2014, Plaintiff's Counsel moved to withdraw from the case due to "irreconcilable issues in the attorney-client relationship...." [doc. # 38]. Counsel certified to the Court that he notified Plaintiff of the Motion to Withdraw and informed Plaintiff of the pending deadlines and necessary court appearances. [doc. #s 38, p. 3; 38-1]. Counsel also notified the Court of Plaintiff's new address and new telephone number. Id. On April 14, 2014, the court granted counsel's motion. [doc. # 39].
Defendants filed the instant Motion on August 21, 2014. [doc. # 40]. They begin by stating that they first propounded discovery on Plaintiff's Counsel on February 20, 2014. [doc. # 40-3]. On May 7, 2014, after Plaintiff's Counsel withdrew and before they received any responses to the propounded discovery, Defendants propounded discovery directly to Plaintiff using the updated address that Plaintiff's Counsel provided. [doc. # 40-4]. However, on May 9, 2014, the United States Postal Service returned the discovery to Defendants because it was "not deliverable as addressed." [doc. # 40-5, p. 1].
Defendants' Counsel states that he "attempted to telephone [Plaintiff] at the number provided by the Clerk of Court, " but "was greeted with a message that the number had been changed or was no longer in service." [doc. # 40-1, p. 2]. Counsel further asserts that he called a second time but was "again greeted with the same message." Id. On the third call, Counsel "was informed that the number was no longer in service or had been changed or disconnected." Id. Counsel also attempted to contact Plaintiff by mailing him a second letter on June 16, 2014. [doc. # 40-6].
Defendants maintain that Plaintiff never responded to the discovery requests and has yet to respond to any of Counsel's attempts to contact him. [doc. # 40-1, p. 1]. They contend that, due to Plaintiff's silence, they cannot complete discovery and cannot prepare for the trial set for November 17, 2014. Id. at 4. They also contend that Plaintiff has failed keep them, as well as the Court, apprised of his current address and telephone number. As a result, they seek dismissal with prejudice for want of prosecution. Id. at 3-4.
The matter is now before the Court.
Law and Analysis
Federal Rule of Civil Procedure 41(b) authorizes courts to dismiss an action if a plaintiff fails to diligently prosecute his case. This authorization "flows from the court's inherent power to control its docket and prevent undue delays in the disposition of pending cases." Boudwin v. Graystone Ins. Co., 756 F.2d 399, 401 (5th Cir. 1985). Similarly, Local Rule 41.3 states that "[t]he failure of... a pro se litigant to promptly notify the court in writing of an address change may be considered cause for dismissal for failure to prosecute when a notice is returned to the court for the reason of an incorrect address and no correction is made to the address for a period of 30 days." Exercise of the power to dismiss is ultimately committed to the sound discretion of the district courts. Lopez v. Aransas Cnty. Indep. Sch. Dist., 570 F.2d 541, 544 (5th Cir. 1978).
On August 21, 2014, the Court attempted to mail Plaintiff a "Notice of Motion Setting Without Date" to inform Plaintiff of the deadline for responding to the instant Motion. [doc. # 41]. However, the United States Postal Service returned the mailing to the Clerk of Court on August 25, 2014, noting that it was "Not Deliverable As Addressed." [doc. # 42]. Despite declaring in his initial pro se complaint that he understood that his failure to apprise the Court of his new address would result in dismissal, [doc. # 1, p. 4], Plaintiff has yet to provide the Court with a new address, telephone number, or other means of contact.
By failing to provide the Court with his correct address and telephone number, Plaintiff has prevented the Court, as well as Defendants, from communicating with him and expediting the resolution of these proceedings. This failure, along with his failure to cooperate in discovery, indicates that Plaintiff has lost interest in pursuing this lawsuit. Accordingly, dismissal for failure to prosecute is warranted.
However, dismissal with prejudice is only "appropriate where there is a clear record of delay or contumacious conduct by the plaintiff, ..., and when lesser sanctions would not serve the best interests of justice." Bryson v. U.S., 553 F.3d 402, 403 (5th Cir. 2008) (citation and internal quotation marks omitted). Generally, a court must find one or more of the following aggravating factors to dismiss an action with prejudice: (1) delay attributable to the plaintiff, not to his attorney; (2) actual ...