Opinion
CIVIL ACTION NO. 99-3657 SECTION: "C" (3).
April 17, 2000.
REPORT AND RECOMMENDATION
Plaintiff, Roderick Jerome Stewart, was incarcerated in the Community Correctional Center when he filed the captioned pro se and in forma pauperis complaint against Mayor Marc Morial and Sheriff Charles C. Foti, Jr., pursuant to 42 U.S.C. § 1983. In his complaint, Stewart alleges that upon being booked into the Orleans Parish prison facility, he was given a tuberculosis (TB) test by the medical staff. Plaintiff was allegedly informed that he had been exposed to TB and that he would be given medication for a period of six (6) months. According to plaintiff, the sheriff has shown deliberate indifference to his medical needs because plaintiff has not been provided with required medication and he has not been properly treated for his exposure to tuberculosis. Plaintiff further alleges that the sheriff has failed to perform his training and disciplinary duties with respect to medical care at the prison. Stewart claims that Mayor Marc Morial, as Mayor of the City of New Orleans, oversees the functions of the prison and although he is aware of problems with medical treatment at the prison, he has failed to correct it.
On January 18, 2000, this Court ordered plaintiff to file, on or before February 18, 2000, 1) a written statement of facts supporting the claims, 2) a list of all exhibits and documents to be used at trial, and 3) a list of all witnesses to be called at trial including a summary of the anticipated testimony of each witness. The order further provided that the failure to comply could result in the dismissal of this action. Such order was mailed by the Clerk of Court and it was not returned as undeliverable. Plaintiff failed to respond to the minute entry.
Rec. Doc. No. 3.
On February 29, 2000, this Court contacted the Orleans Parish Prison and it was informed that plaintiff had been released from custody on February 2, 2000, and that his last known address was 3707 Loyola Avenue, New Orleans, Louisiana. On March 1, 2000, this Court ordered the Clerk of Court to forward a copy of this Court's January 18, 2000, minute entry to plaintiff by both regular and certified mail at the address furnished by the sheriff's office. Plaintiff was informed that failure to respond would result in a recommendation of dismissal. As of this date, plaintiff has not responded to this Court's minute entries of January 18, 2000 and March 1, 2000.
Rec. Doc. No. 4.
The authority of a federal trial court to dismiss a plaintiff's action because of his failure to prosecute is clear. Link v. Wabash R. Co., 370 U.S. 626, 82 S. Ct. 1386, 8 L.Ed.2d 734 (1962). 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 (5th Cir. 1976), cert. denied, 429 U.S. 1107, 97 S.Ct. 1139, 51 L. Ed. 2d 559 (1977). Rule 41(b) of the Federal Rules of Civil Procedure specifically provides that a court may, in its discretion, dismiss a plaintiff's claim for failure to prosecute or for failure to comply with the Federal Rules of Civil Procedure or any order of the court and such a dismissal is considered to be an adjudication on the merits. See also Lopez v. Aransas County Independent School Dist., 570 F.2d 541 (5th Cir. 1978).
Because plaintiff is proceeding pro se, the Court need only consider his conduct in determining whether dismissal of this action is proper under Rule 41(b) of the Rules of Federal Procedure. As of this date, the undersigned U.S. Magistrate Judge has not received the requested information required by the Court's previous orders.
RECOMMENDATION
It is therefore RECOMMENDED that plaintiff's complaint be DISMISSED WITHOUT PREJUDICE for failure to prosecute.
A party's failure to file written objections to the proposed findings, conclusions, and recommendation in a magistrate judge's report and recommendation within ten (10) 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 Services Auto. Ass'n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc).