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Williams v. MacFarland

November 13, 2006

WAYNE A. WILLIAMS, PLAINTIFF,
v.
KATHY MACFARLAND, DR. L. KUNTZ AND CMS, DEFENDANTS.
DR. L. KUNTZ AND CMS, CROSS-CLAIMANTS,
v.
KATHY MACFARLAND, CROSS-DEFENDANT.



The opinion of the court was delivered by: Hillman, District Judge

OPINION

This matter has come before the Court on Defendant Kathy MacFarland's motion to dismiss Plaintiff Wayne William's Complaint pursuant to Federal Civil Procedure Rule 41(b) for William's lack of prosecution of his case. For the reasons expressed below, MacFarland's motion will be granted.

BACKGROUND

Williams, who is proceeding pro se, filed his Complaint on August 30, 2005*fn1 alleging that he received inadequate dental care while he was incarcerated at South Woods State Prison ("SWSP"). Williams claims that on December 22, 2003, his jaw was fractured when he fell off a top bunk bed. The next day, oral surgeon "Dr. Marten Laden," who is not named as a defendant, applied "fracture bars" to treat his jaw injury. Williams claims that Dr. Laden, with malicious intent and deliberate indifference to his dental and medical needs, refused to remove the "fracture bars" in March, 2004, which Williams contends was the "required time." The bars were removed in November, 2004.

Williams claims that he sent written grievances to MacFarland, Administrator of South Woods State Prison, and voiced his concerns to the ombudsman for Defendant Community Medical Services and Defendant "Dr. L. Kuntz,"*fn2 but they did not respond. As a result, Williams contends that Defendants violated the Eighth Amendment prohibition against cruel and unusual punishment.

The Court granted William's application to proceed in forma pauperis and ordered the U.S. Marshall to serve summons and copies of the Complaint upon Defendants. CMS was served on September 16, 2005 and MacFarland and Kuntz were served on October 26, 2005.

On November 7, 2005, Magistrate Judge Joel B. Rosen issued an Order compelling Williams to appear for a deposition on December 5, 2005. In a letter to the Court dated November 28, 2005, Williams explained that he was being paroled on December 8, 2005 and that he would be going to a halfway house until January 2006, after which time he would be homeless. Williams emphasized, however, that he would still like to pursue his case.

On November 30, 2005, MacFarland filed a motion to take the deposition of Williams. Two weeks later, on December 16, 2005, Williams filed another letter informing the Court of his change of address, and reminding the court that as of January 4, 2006 he would be homeless. Despite being homeless, however, Williams stated that "I will do everything in my powers to obtain counsel at that time."

On February 3, 2006, Judge Rosen denied Williams' motion to appoint pro bono counsel. Judge Rosen's Order also dismissed as moot MacFarland's motion to take the deposition of Williams because her request was pursuant to Fed. R. Civ. P. 30(a)(2), which requires leave of court to depose a prisoner, and Williams was no longer incarcerated.*fn3

In early March, 2006, Kuntz and CMS filed a motion for summary judgment, and MacFarland filed a motion to dismiss, or in the alternative, a motion for summary judgment. Notices of the filing of these motions, as well as three Orders from the Court, were mailed to Williams, but they were all returned as undeliverable and unable to be forwarded. In total, six notices were returned as undeliverable between March 9, 2006 and July 5, 2006.

On September 14, 2006, MacFarland filed the instant motion to dismiss for lack of prosecution. Williams has not contacted the Court since December 16, 2005.

DISCUSSION

Federal Civil Procedure Rule 41(b) provides,

For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for ...


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