United States District Court, M.D. Tennessee, Columbia Division
REPORT AND RECOMMENDATION
JOE B. BROWN, Magistrate Judge.
TO: THE HONORABLE WILLIAM J. HAYNES, JR.
For the reasons stated below, the Magistrate Judge recommends that this case be dismissed without prejudice for failure to prosecute and to obey court orders, and that any appeal from the dismissal not be certified as taken in good faith.
The Plaintiff filed his case in forma pauperis on January 2, 2014 (Docket Entry 1). After a review by then Chief Judge Haynes the Plaintiff was permitted to proceed in forma pauperis on his claims of inadequate medical care by Corrections Corporation of America (CCA) and several of its employees (Docket Entry 3). In the order Chief Judge Haynes stated "He is also forewarned that his prosecution of this action will be jeopardized should he fail to keep the clerk's office informed of his current address."
The Plaintiff returned service packets and service of process was directed on various of the Defendants as of February 3, 2014. The Plaintiff remained in contact with the Court for some time. He requested appointment of counsel in February 2014 (Docket Entry 16), which was denied on February 25, 2014 (Docket Entry 17). On April 29, 2014, the Plaintiff filed a motion to amend his complaint (Docket Entry 41). The motion was denied on May 20, 2014 (Docket Entry 46).
On December 30, 2014 (Docket Entry 50), the Defendant Ashe filed a motion to compel the Plaintiff to respond to discovery requests, requests for admissions, and medical releases which were served on him by mail on November 13, 2014, at his address at South Central Correctional Facility (SCCF). The Plaintiff failed to respond to this motion.
On January 12, 2015, Senior Judge Haynes referred the matter to a Magistrate Judge for case management and a decision on any dispositive matter (Docket Entry 51). The matter was assigned to the undersigned after Magistrate Judge Bryant recused himself (Docket Entry 53). A Rule 16 case management conference was set in the matter for February 5, 2015, by the undersigned in an order entered January 16, 2015 (Docket Entry 56).
An order was entered for the SCCF to produce the Plaintiff for the hearing (Docket Entry 55). Charles F. Bevels of the Tennessee Department of Corrections notified the Court by email on January 26, 2015, that the Plaintiff was paroled on November 6, 2014.
At the appointed time for the case management conference the Plaintiff did not appear. Counsel for the Defendants advised that it was their understanding that mail sent to the Plaintiff after he was released would be forwarded to either the person he listed as an emergency contact, or to the inmate if he provided a forwarding address. None of the mail sent to the Plaintiff has been returned as undelivered.
A dismissal with or without prejudice is a drastic remedy and before the court contemplates dismissing an action under Rule 41(b) the Court must specifically consider:
(1) whether the party's failure to cooperate is due to willfulness, ...