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Pitt v. Weaver

United States District Court, E.D. Louisiana

April 21, 2015

CHARLES PITT, ET AL
v.
CHIEF EARL WEAVER, ET AL., SECTION

REPORT AND RECOMMENDATION

SALLY SHUSHAN, Magistrate Judge.

Plaintiffs, Charles Pitt, Lee Kentrell Jackson, and Jamal Bowe, state pretrial detainees, filed this civil action pursuant to 42 U.S.C. § 1983 against Chief Earl Weaver, Sheriff Marlin N. Gusman, Major Carlos Louque, Major Bonita Pittman, and the Orleans Parish Jail. In this lawsuit, plaintiffs challenge the conditions of their confinement within the Orleans Parish Prison system. For the following reasons, it is recommended that plaintiffs' claims be DISMISSED.

I. Jamal Bowe

When the instant complaint was filed, Jamal Bowe neither paid the required filing fee nor submitted an application to proceed in forma pauperis. The Clerk of Court therefore issued a "Notice of Deficient Filing" advising Bowe that he must either pay the filing fee or submit a pauper application.[1] He failed to respond to that notice.

On March 11, 2015, the undersigned United States Magistrate Judge issued an order directing Bowe to pay the filing fee or to submit a completed pauper application on or before April 1, 2015. He was warned that if he failed to comply with that order, the undersigned would recommend that his claims be dismissed.[2] Bowe failed to comply with that order.

Additionally, this Court's Local Rules provide: "Each attorney and pro se litigant has a continuing obligation promptly to notify the court of any address or telephone number change." Local Rule 11.1. It is clear that Bowe was in fact aware of that obligation, in that his complaint included the following declaration: "I understand that if I am released or transferred, it is my responsibility to keep the Court informed of my whereabouts and failure to do so may result in this action being dismissed with prejudice."[3] This Court's Local Rules further provide:

The failure of an attorney or pro se litigant to notify the court of a current e-mail or postal address may be considered cause for dismissal for failure to prosecute when a notice is returned to the court because of an incorrect address and no correction is made to the address for a period of 35 days from the return.

Local Rule 41.3.1.

More than thirty-five days ago, mail sent to Bowe at the Templeman Unit of the Orleans Parish Prison system, his address of record, was returned by the United States Postal Service as undeliverable because he was no longer in custody.[4] All subsequent mail sent to him at that address has likewise been returned as undeliverable.[5] He has not informed the Court of his current address.

In light of the foregoing, it is appropriate to dismiss Bowe's claims for want of prosecution. The authority of a federal trial court to dismiss a plaintiff's action because of failure to prosecute is clear. Link v. Wabash R.R., 370 U.S. 626 (1962); McCullough v. Lynaugh, 835 F.2d 1126 (5th Cir. 1988). The Federal Rules of Civil Procedure specifically provide that a court may, in its discretion, dismiss a plaintiff's action for failure to prosecute or for failure to comply with the Federal Rules of Civil Procedure or any order of the court. Fed.R.Civ.P. 41(b). The Court's power to dismiss for want of prosecution should be used sparingly, although it may be exercised sua sponte whenever necessary to achieve the orderly and expeditious disposition of cases. Ramsay v. Bailey, 531 F.2d 706, 707 (5th Cir. 1976).

Because Bowe is proceeding pro se, the Court need only consider his conduct in determining whether dismissal is proper under Rule 41(b). As noted, Bowe has neither paid the required filing fee nor submitted a completed pauper application. He has also failed to keep the Court apprised of his current address, and his whereabouts are unknown. For these reasons, the Court is unable to advance his claims on the docket. Accordingly, Bowe's claims should be dismissed for failure to prosecute.

II. Charles Pitt and Lee Kentrell Jackson

The remaining plaintiffs, Charles Pitt and Lee Kentrell Jackson, requested and were granted leave to pursue their claims in forma pauperis. Although they have properly prosecuted their claims, the claims should nevertheless be dismissed for the following reasons.

A. Standards of Review

Federal law mandates that federal courts "review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity." 28 U.S.C. § 1915A(a).[6] Regarding such lawsuits, federal law further requires:

On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint -
(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune ...

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