Amos v. Union, MS Police Dept.

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF MISSISSIPPI NORTHERN DIVISION

DERICK MACHUN AMOS PLAINTIFF V. CIVIL ACTION NO. 3:21-CV-55-DPJ-FKB SHERIFF JODY PENNINGTON; ET AL. DEFENDANT

ORDER This matter is before the Court on the unopposed Report and Recommendation [58] of United States Magistrate Judge F. Keith Ball. Plaintiff Derick Machun Amos brought this § 1983 action in January 2021, claiming to have been detained for a prolonged period without trial. Compl. [1] at 6–7; see also Order [15] at 2. On March 11, 2022, United States Magistrate Judge F. Keith Ball scheduled a Spears omnibus hearing for May 25, 2022. Order [51] at 1. Amos did not appear, so Judge Ball now recommends that this case be dismissed for failure to prosecute. R&R [58] at 1. “Federal courts have inherent powers[,] which include the authority to sanction a party or attorney when necessary to achieve the orderly and expeditions disposition of their dockets.” Budri v. Amin. Review Bd., U.S. Dep’t of Labor, 858 F. App’x 117, 127 (5th Cir. 2021) (per curiam) (quoting In re Carroll, 850 F.3d 811, 815 (5th Cir. 2017)). A dismissal with prejudice for failure to prosecute is proper only when “[(1)] the district court has expressly determined that lesser sanctions would not prompt diligent prosecution, or [(2)] the record shows that the district court employed lesser sanctions that proved to be futile.” Campbell v. Wilkinson, 988 F.3d 798, 802 (5th Cir. 2021) (quoting Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992)). “[A]dvance warnings of possible default mitigate the requirement that the district court consider lesser sanctions.” Atl. Sounding Co. v. Fendlason, 555 F. App’x 378, 380 (5th Cir. 2014) (per curiam) (citing Imperial ED Promotions, L.L.C. v. Pacquiao, 549 F. App’x 295, 299 (5th Cir. 2013) (per curiam)). The Court last heard from Amos in December 2021. Since then, various Defendants have filed dispositive motions; Amos’s responses have not been submitted and are delinquent. See Mots. for J. on the Pleadings [46, 53] (both filed in March 2022); Mot. for Summary J. [56]

(filed May 11, 2022). Considering Amos’s persistent silence, his absence from the Spears hearing, and his failure to object to Judge Ball’s Report and Recommendation, dismissal for failure to prosecute is appropriate. The Court adopts the R&R in full. A final judgment will be entered pursuant to Federal Rule of Civil Procedure 58. SO ORDERED AND ADJUDGED this the 14th day of June, 2022.

s/ Daniel P. Jordan III CHIEF UNITED STATES DISTRICT JUDGE