United States District Court, E.D. Louisiana
LEANON P. LEWIS
SHERIFF GUSMAN, ET AL.
REPORT AND RECOMMENDATION
JANIS\VAN MEERVELD UNITED STATES MAGISTRATE JUDGE.
Leanon P. Lewis, a state pretrial detainee, filed this
federal civil rights action pursuant to 42 U.S.C. §
1983. However, because he submitted neither a
filing fee nor an application to proceed in forma
pauperis, the Clerk of Court instructed plaintiff to
correct that deficiency within twenty-one days. When plaintiff
did not respond, the undersigned United States Magistrate
Judge then issued an Order directing plaintiff to either pay
the filing fee or file an application to proceed as a pauper
on or before October 17, 2018. That Order, which was sent to
plaintiff at his address of record at the Orleans Justice
Center, was returned by the United States Postal Service as
undeliverable on October 10, 2018. Based on the foregoing, the
undersigned now recommends that this matter be dismissed for
failure to prosecute.
initial matter, the Court notes that plaintiff has failed to
pay the required filing fee or request and be granted pauper
status. Accordingly, he has failed to meet even that most
basic requirement to have his case filed and properly before
in any event, plaintiff has failed to keep the Court apprised
of his current address. That alone warrants dismissal. 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. The 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.
Rule 41.3.1. As noted, more than thirty-five days ago, mail
sent to plaintiff at the Orleans Justice Center, his address
of record, was returned by the United States Postal Service
light of the foregoing, it is appropriate to dismiss
plaintiff's complaint 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 and that such a dismissal is
considered to be an adjudication on the merits. 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).
plaintiff is proceeding pro se, the Court need only
consider his conduct in determining whether dismissal is
proper under Rule 41(b). Here, plaintiff has failed to pay
the required filing fee or request and be granted permission
to proceed in forma pauperis. In addition, mail sent
to him at his address of record has been returned as
undeliverable. Due solely to plaintiffs failure, his
whereabouts are unknown, and this Court has no way to contact
him in order to advance his case on the docket. Accordingly,
the complaint should be dismissed for failure to prosecute.
therefore RECOMMENDED that plaintiffs
complaint be DISMISSED WITHOUT PREJUDICE for
failure to prosecute.
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.
28 U.S.C. § 636(b)(1); Douglass v. United Services
Auto. Ass'n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en