The opinion of the court was delivered by: Harold Baker United States District Judge
This cause is before the court on the defendants motion to dismiss the plaintiff's lawsuit for failure to prosecute. [d/e 20] The motion is granted.
The plaintiff originally filed this lawsuit pursuant to 42 U.S.C. §1983 claiming that his constitutional rights were violated at the Hill Correctional Center. The plaintiff alleged that the defendants were deliberately indifferent to his serious medical condition.
The plaintiff was released from the Hill Correctional Center during the pendency of this lawsuit. The plaintiff informed the court of his March 1, 2006 release date and asked the court to set a future hearing by telephone conference call. The plaintiff's motion was granted and he was advised that he must immediately inform the court of his new address and phone number or his case could be dismissed. See February 16, 2006 Text Order.
The defendants state that they scheduled a deposition with the plaintiff on August 24, 2006. Notice of the deposition was sent to the plaintiff's reported address. Nonetheless, the plaintiff did not appear for the deposition, nor did he notify defense counsel that he would be unable to appear.
On November 13, 2006, the court required the plaintiff to file a response to the defendants' motion and explain his failure to appear for the deposition. The plaintiff was advised that if he failed to respond by the December 1, 2006 deadline, his case would be dismissed. The court's order was returned to the clerk of the court as undeliverable.
The plaintiff was also previously advised in a December 2, 2005 court order that he must "immediately notify the court of any change in his mailing address of telephone number. Failure to notify the court of any change in the mailing address will result in the dismiss al this lawsuit with prejudice." December 2, 2005 Court Order, p. 3.
IT IS THEREFORE ORDERED that:
1) The defendants' motion to dismiss this lawsuit is granted. [d/e 20] The clerk is directed to dismiss this case in its entirety with prejudice for failure to prosecute with due diligence and failure to follow a court order. See Fed. R.Civ. P. 41(b).
2) The plaintiff is still responsible for the payment of the $250 filing fee. Release from incarceration does not relieve the plaintiff of his obligation to pay the filing fee in full.
Enter this _______ day of March, 2007.
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