Opinion
CIVIL ACTION NO. 2:19-CV-374
06-30-2020
BRIAN WILLIAM DOUD, Plaintiff, v. NATASHA MCMILLION, et al, Defendants.
MEMORANDUM AND RECOMMENDATION TO DISMISS CASE FOR FAILURE TO PROSECUTE AND TO DENY MOTIONS FOR CLASS CERTIFICATION AS MOOT
Plaintiff Brian William Doud, appearing pro se and in forma pauperis (IFP), has filed this prisoner civil rights action pursuant to 42 U.S.C. § 1983. At the time Plaintiff filed this action, he was confined at the E. Gloss Brenner Unit in San Diego, Texas. In his original complaint, Plaintiff sues the following defendants: (1) Natasha McMillion; (2) Ronnie Perez; (3) Loiuse Tavares; (4) Delia G. Villarreal; and (5) Dr. Alejandro Lopez, Jr. (D.E. 1). Plaintiff also has filed motions for class certification. (D.E. 6, 9).
On January 16, 2020, the undersigned directed Plaintiff to file an amended complaint. (D.E. 15). Plaintiff filed his amended complaint on March 27, 2020. (D.E. 38). On April 7, 2020, Plaintiff filed a Notice of Change of Address, stating that his current address is "4818 10th Street, Bacliff, TX 77518." (D.E. 42).
On May 20, 2020, the Court scheduled a telephonic hearing to be held on May 26, 2020, regarding Plaintiff's amended complaint. (D.E. 45). On May 26, 2020, the Court re-scheduled the telephonic hearing to take place on June 3, 2020, at 2:00 p.m. (D.E. 46). Because Plaintiff failed to make an appearance at the telephone hearing, the Court called the case at 2:14 p.m.
On June 3, 2020, the undersigned ordered Plaintiff to show cause why his case should not be dismissed for want of prosecution. (D.E. 47). On June 12, 2020, the Court received a letter from Plaintiff, in which he indicated that he did not receive notice of the telephone hearing to be held on May 26, 2020. (D.E. 48). Plaintiff indicated that the address listed on the docket remains his current address. He also provided a phone number where he can be reached.
On June 23, 2020, the undersigned scheduled a telephone hearing to take place on June 30, 2020, at 3:00 p.m. (D.E. 49). Plaintiff, however, failed to make an appearance at the scheduled hearing. The Court unsuccessfully attempted to reach Plaintiff multiple times by calling or texting the telephone number provided by Plaintiff. Because Plaintiff failed to appear as ordered, the Court called the case at 3:15 p.m.
A district court has authority to dismiss a case for want of prosecution or for failure to comply with a court order. Fed. R. Civ. P. 41(b); see also Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir. 1997) (holding district courts have the power to sua sponte dismiss a cause of action for failure to prosecute). Plaintiff has now failed to appear for scheduled telephone hearings on two occasions, and it is apparent that he has abandoned this lawsuit. The Court, therefore, cannot proceed with Plaintiff's case if he is not willing to participate as a litigant. Accordingly, dismissal is warranted under these circumstances.
Accordingly, it is respectfully recommended that Plaintiff's lawsuit be DISMISSED without prejudice under Rule 41(b) for failure to prosecute and that his motions for class certification (D.E. 6, 9) be DENIED as moot.
Respectfully recommended this 30th day of June, 2020.
/s/_________
Julie K. Hampton
United States Magistrate Judge
NOTICE TO PARTIES
The Clerk will file this Memorandum and Recommendation and transmit a copy to each party or counsel. Within FOURTEEN (14) DAYS after being served with a copy of the Memorandum and Recommendation, a party may file with the Clerk and serve on the United States Magistrate Judge and all parties, written objections, pursuant to Fed. R. Civ. P. 72(b), 28 U.S.C. § 636(b)(1), General Order No. 2002-13, United States District Court for the Southern District of Texas.
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. Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996)(en banc).