United States District Court, E.D. Louisiana
ANTHONY J. HAYES
SHERIFF GUSMAN, ET AL.
REPORT AND RECOMMENDATION
MICHAEL B. NORTH UNITED STATES MAGISTRATE JUDGE.
U.S.C. §1983 proceeding was filed in forma
pauperis by pro se Plaintiff, Anthony J. Hayes,
against Defendants, Sheriff Marlin Gusman, S.O.B. Officer
Polk, and the collective medical staff of the Orleans Justice
Center (“OJC”). (Rec. doc. 1, pp. 1, 4).
Plaintiff, an inmate of OJC at the time that suit was filed,
complained of the alleged use of excessive force against him
by Officer Polk on June 28, 2018. (Id. at pp. 4-5).
issue was joined, by order dated September 21, 2018
(“Briefing Order”), Plaintiff was directed to
file in the record of this proceeding, on or before October
22, 2018, a statement of the facts to be proven at trial, a
list of documents to be offered as exhibits, and a list of
intended witnesses. (Rec. docs. 7, 9). A copy of the Briefing
Order was mailed to Plaintiff at OJC but was subsequently
returned as undeliverable on October 10, 2018. (Rec. doc.
10). The Court's staff has subsequently confirmed with
counsel for the Orleans Parish Sheriff's Office that
Plaintiff was transferred from the OJC on September 19, 2018.
It has now been over 35 days since the copy of the Briefing
Order that was mailed to Plaintiff was returned to the Court
as undeliverable and no address correction has been made by
him. Nor has he provided the Court with the information
required by the Briefing Order.
Rule 11.1 provides, in pertinent part, that “[e]ach
attorney and pro se litigant has a continuing obligation to
promptly notify the court of any address …
change.” The practical considerations that the Local
Rule was intended to address were touched upon by the Fifth
Circuit years ago, as follows:
“It is neither feasible nor legally required that the
clerks of the district courts undertake independently to
maintain current addresses on all parties to pending actions.
It is incumbent upon litigants to inform the court of address
changes, for it is manifest that communications between the
clerk and the parties or their counsel will be conducted
principally by mail. In addition to keeping the clerk
informed of any change of address, parties are obliged to
make timely status inquiries. Address changes normally would
be reflected by those inquiries if made in writing.”
State v. Shannon, No. 87-CV-3951,
1988 WL 54768 at *1 (E.D. La. May 23, 1988)
(quoting Perkins v. King, No. 84-3310,
slip. op. at *4 (5th Cir. May 19, 1985)).
put, Local Rule 11.1 imposes an affirmative obligation on
parties like Hayes to keep the Court apprised of their
current mailing addresses and relieves court personnel of
that burden. See Lewis v. Hardy, 248
Fed.Appx. 589, 593 n. 1 (5th Cir. 2007), cert.
denied, 552 U.S. 1246, 128 S.Ct. 1479 (2008); St.
Juniors v. Burgess, No. 15-CV-0350, 2016 WL 4368230
(E.D. La. Aug. 16, 2016); Thomas v. Parker, No.
07-CV-9450, 2008 WL 782547 (E.D. La. Mar. 19, 2008);
Batiste v. Gusman, No. 07-CV-1136, 2007 WL 1852026
(E.D. La. June 26, 2007). Local Rule 41.3.1 further provides
that “[t]he failure of a … pro se litigant to
notify the court of a current 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.” Finally, pursuant to Rule
41(b) of the Federal Rules of Civil Procedure, an action may
be dismissed based on the failure of a plaintiff to prosecute
his case or to comply with a court order. Larson v.
Scott, 157 F.3d 1030, 1031 (5th Cir. 1998);
Lopez v. Aransas County Independent School District,
570 F.2d 541 (5th Cir. 1978). 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 the failure to comply with
the court's orders. Markwall v. County of Bexar,
878 F.2d 899, 902 (5th Cir. 1989); Price v.
McGlathery, 792 F.2d 472, 474-75 (5th Cir.
1986). As Plaintiff is proceeding pro se in this
matter, the Court must consider his action/inaction alone in
considering dismissal of this case under Rule 41(b).
noted above, Plaintiff has failed to keep the Court apprised
of a current mailing address as required by Local Rule 11.1.
Plaintiff acknowledged his obligation in that regard when he
signed his complaint, the fifth page of which contains a
declaration, sworn to by him under penalty of perjury in
substantial conformity with 28 U.S.C. §1746, that
“I understand that if I am released or transferred, it
is my responsibility to keep the Court informed of my
whereabouts and [the] failure to do so may result in this
action being dismissed with prejudice.” (Rec. doc. 1,
p. 5). Plaintiff's inaction in this regard has deprived
the Court of the ability to communicate with him and,
consequently, to advance his case on the docket. Plaintiff
has also failed to provide the Court with the information
required by the Briefing Order. As Plaintiff is proceeding
pro se in this matter, these failures are
attributable to him alone. Accordingly, it will be
recommended that Plaintiff's lawsuit be dismissed for
failure to prosecute pursuant to Rule 41(b), Fed. R. Civ. P.,
and Local Rule 41.3.1.
foregoing reasons, it is recommended that Plaintiff's
lawsuit be dismissed for failure to prosecute pursuant to