United States District Court, E.D. Louisiana
FINDINGS AND RECOMMENDATION
C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE
Pierre Lombardino, was a prisoner incarcerated in the
Jefferson Parish Correctional Center. He filed the captioned
suit pursuant to 42 U.S.C. § 1983 alleging excessive
force by a deputy while incarcerated in the Jefferson Parish
Correctional Center. Plaintiff seeks monetary damages and
injunctive relief. Record Doc. No. 1, Complaint at
¶¶ IV and V.
order dated July 19, 2018, Record Doc. No. 5, the court
ordered plaintiff to file with the court on or before August
10, 2018 (1) a written list of the full names of all persons
whom plaintiff contends violated his constitutional rights
under the facts alleged in this lawsuit; (2) a written
statement advising the court whether plaintiff is presently
incarcerated based on a conviction and, if so, the date of
conviction; (3) a written statement of the facts expected to
be offered at trial, either orally or as documents; (4) a
complete and specific list of all documents to be offered at
trial; and (5) a complete list of all witnesses to be called
at trial, including the name and address of each witness and
a separate summary of the expected testimony of each witness.
The record indicates that this order was mailed to plaintiff
at the address listed on his complaint. Plaintiff filed his
response on July 30, 2018. Record Doc. No. 7.
order dated August 7, 2018, a preliminary conference by
telephone was scheduled before me for September 13, 2018, at
10:30 a.m. Record Doc. No. 8. The purpose of the conference
was to examine the basis of plaintiff's claims and to
select pre-trial and trial dates, if appropriate. The court
was advised by the Jefferson Parish Sheriff's Office that
plaintiff is no longer incarcerated. Record Doc. No. 9.
the court obtained plaintiff's last known address from
the jail's records, and notice of the September 13th
preliminary conference was provided by the clerk, both to
plaintiff's former jail address and plaintiff's last
known residential address. Record Doc. Nos. 12, 13, 16. On
September 13, 2018, counsel for defendant appeared by
telephone. Plaintiff failed to appear in person or by
telephone. Defense counsel represented that his own attempts
to contact plaintiff by mail have been unsuccessful.
court's recent orders addressed to plaintiff at both his
last known residential address and his former place of
incarceration have been returned to the Clerk's Office as
undeliverable. All litigants are obligated to keep the court
advised of any address change. Local Rules 11.1 and 41.3.1.
In addition, the Section 1983 complaint form used by
plaintiff to institute this action contains the following
declaration dated July 13, 2018, and signed by plaintiff:
“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.” Record Doc. No. 1,
Complaint at ¶ VI.
41(b) of the Federal Rules of Civil Procedure provides that a
court may in its discretion dismiss any action based on the
failure of the plaintiff to prosecute or comply with any
order of the court. Hulsey v. State of Texas, 929
F.2d 168, 171 (5th Cir. 1991); McCullough v.
Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988);
Brinkmann v. Dallas County Deputy Sheriff Abner, 813
F.2d 744, 749 (5th Cir. 1987). In applying the sanction of
dismissal, courts have traditionally considered the extent to
which the plaintiff, rather than his counsel, is responsible
for the delay or failure to comply with the court's
order. Markwell v. County of Bexar, 878 F.2d 899,
902 (5th Cir. 1989); Price v. McGlathery, 792 F.2d
472, 474-75 (5th Cir. 1986). Because the plaintiff in this
case is in proper person, it is apparent that this court must
weigh his actions alone in considering dismissal of this
action under Rule 41(b). A pro se litigant is not exempt from
compliance with relevant rules of procedural and substantive
law. Birl v. Estelle, 660 F.2d 592, 593 (5th Cir.
1981); Edwards v. Harris County Sheriff's
Office, 864 F.Supp. 633, 637 (S.D. Tex. 1994). A pro se
litigant who fails to comply with procedural rules has the
burden of establishing excusable neglect, which is a strict
standard requiring proof of more than mere ignorance.
Kersh v. Derozier, 851 F.2d 1509, 1512 (5th Cir.
1988); Birl, 660 F.2d at 593.
court has attempted through its orders to have plaintiff
provide it with the information necessary to screen and
prosecute plaintiff's case and advised him of the
consequences of the failure to notify the court of his change
of address. Record Doc. No. 9. Plaintiff's failure to
comply with the court's August 13, 2018 order clearly
reflects a failure on the part of plaintiff to prosecute.
effort to afford plaintiff one final opportunity to respond
and an additional 14-day period within which to provide the
court with his current contact information, as required by
the Local Rules, I have issued these findings and
recommendation to the presiding United States District Judge.
Plaintiff is advised that he may object to the Magistrate
Judge's proposed findings and recommendation within
fourteen (14) days from the date of service of this report.
The plaintiff is advised that any objection should be in
writing and filed with the Clerk of the United States
District Court, Eastern District of Louisiana, 500 Poydras
Street, New Orleans, Louisiana 70130, on a written document
containing the caption of this lawsuit. It is suggested to
the plaintiff that his objection should contain a short
summary of the reasons that plaintiff failed to comply with
the court's previous orders. It is further suggested that
plaintiff should also provide the court with the contact
information required by the court's rules, as detailed
is advised that failure to file written objections to the
Magistrate Judge's Findings and Recommendation may and
probably will result in dismissal of plaintiff's suit. A
party's failure to file written objections to the
proposed findings, conclusions, and recommendation in a
magistrate judge's report and recommendation within
fourteen (14) days after being served with a copy shall bar
that party, except upon grounds of plain error, from
attacking on appeal the unobjected-to proposed factual
findings and legal conclusions accepted by the district
court, provided that the party has been served with notice
that such consequences will result from a failure to object.
Douglass v. United Servs. Auto. Ass'n, 79 F.3d
1415, 1430 (5th Cir. 1996) (en banc) (citing 28 U.S.C. §
IS RECOMMENDED that, if plaintiff does not file
written objections to these Findings and Recommendation, the
claims of Pierre Lombardino be ...