United States District Court, E.D. Tennessee
MEMORANDUM AND ORDER
A. VARLAN CHIEF UNITED STATES DISTRICT JUDGE.
Patton, (“Plaintiff”), filed this civil rights
action pursuant to 42 U.S.C. § 1983 on March 14, 2013
[Doc. 2]. The Court detailed the procedural history of this
case in its October 28, 2016, Order:
Plaintiff filed this civil rights action pursuant to 42
U.S.C. § 1983 on March 14, 2013 [Doc.
2]. On May 7, 2013, Plaintiff's motion for
leave to proceed in forma pauperis was granted, and
his claims against several defendants were dismissed;
however, Plaintiff was permitted to proceed with his claims
against Defendants Nance, Houston, Keathly, and Underwood
[Doc. 5]. The U.S. Marshal Service attempted service upon
these remaining Defendants on behalf of Plaintiff, but each
summons was returned unexecuted as “refused”
From July through October of 2013, Plaintiff filed numerous
letters regarding the status of his case, as well as a motion
for default judgment against the remaining Defendants [Docs.
10-18]. On December 13, 2013, the Court ordered Plaintiff to
show cause within 20 days as to why his case should not be
dismissed without prejudice based on Plaintiff's failure
to timely serve Defendants pursuant to Federal Rule of Civil
Procedure 4 [Doc. 19]. Plaintiff did not respond, and on
January 9, 2014, the Court dismissed Plaintiff's action
with prejudice for failure to prosecute and failure to comply
with Court orders, pursuant to Federal Rule of Civil
Procedure 41(b) [Docs. 20-21].
Plaintiff appealed and on September 19, 2014, the United
States Court of Appeals for the Sixth Circuit vacated the
Court's judgment and remanded Plaintiff's action to
this Court [Docs. 25-26]. This action was reopened on October
15, 2014. Plaintiff has filed two letters since that time:
the first, on October 28, 2014, requested a copy of the
docket sheet, and the second, filed on April 6, 2015 . . .
[Doc. 29 at 1-2].
Court noted that the status of this case is “unclear,
” given that: (1) more than 3 years had passed since
Plaintiff's failed attempts at serving the remaining
Defendants; (2) more than 18 months had passed since
Plaintiff had taken any action with respect to this action;
(3) Plaintiff has never responded to the Court's December
13, 2013, Order to show cause; (4) Plaintiff has not sought
additional time to effect service; and (5) nothing in the
record suggests that he has made any effort to discover or
provide additional information about the whereabouts of the
remaining Defendants [Id. at 2-3]. Accordingly, the
Court ordered Plaintiff “to file a response to this
Order within 45 days of the date of entry, advising
the Court as to whether he wishes to move forward in
prosecuting this action. The Court further ordered Plaintiff,
once again, to show cause as to why this case should not be
dismissed pursuant to Rule 4(m) for failure to effect service
upon Defendants” [Id. at 3]. The Court
cautioned that “[i]f Plaintiff fails to timely respond
or fails to show cause, the Court must-at a minimum-dismiss
the action without prejudice as to the remaining Defendants,
” pursuant to Federal Rule of Civil Procedure
[Id.]. However, the Court warned Plaintiff that
“his failure to file a timely response to this Order
may once again result in the dismissal of this action with
prejudice for failure to prosecute and/or failure to comply
with a Court order pursuant to Rule 41(b)”
[Id.]. More than 45 days have now passed since the
entry of the Court's Order, but Plaintiff has filed no
response to the Court's Order, nor has he taken any
additional action with respect to this case.
Rule of Civil Procedure 41(b) gives this Court the authority
to dismiss a case for “failure of the plaintiff to
prosecute or to comply with these rules or any order of the
court.” See, e.g., Nye Capital
Appreciation Partners, L.L.C. v. Nemchik, 483 F.
App'x 1, 9 (6th Cir. 2012); Knoll v. Am. Tel. &
Tel. Co., 176 F.3d 359, 362-63 (6th Cir. 1999).
Involuntary dismissal under Rule 41(b) “operates as an
adjudication on the merits.” Fed.R.Civ.P. 41(b);
see Link v. Wabash R.R. Co., 370 U.S. 626, 629
(1962) (“The authority of a federal trial court to
dismiss a plaintiff's action with prejudice because of
his failure to prosecute cannot seriously be
Court considers four factors when considering dismissal under
(1) whether the party's failure is due to willfulness,
bad faith, or fault; (2) whether the adversary was prejudiced
by the dismissed party's conduct; (3) whether the
dismissed party was warned that failure to cooperate could
lead to dismissal; and (4) whether less drastic sanctions
were imposed or considered before dismissal was ordered.
Wu v. T.W. Wang, Inc., 420 F.3d 641, 643 (6th Cir.
2005); see Regional Refuse Sys., Inc. v. Inland
Reclamation Co., 842 F.2d 150, 155 (6th Cir. 1988).
the first factor, the Court can discern no reason for
Plaintiff's failure other than willfulness or fault.
Although Plaintiff has demonstrated an ability to file
numerous motions with the Court in the past, he has filed
nothing with the Court since April 2015, and there is nothing
in the record to indicate that he did not receive the
Court's Order. Accordingly, this factor weighs in favor
of dismissal. The second factor weighs neither for nor
against dismissal. Because Defendants have not yet been
served, they have not been made to appear. However, it is
arguable that Defendants could be prejudiced in their defense
of this action due to the fact that this case has remained
stagnant for an extended period of time. By contrast, the
third factor clearly weighs in favor of dismissal, as
Plaintiff has failed to comply with the Court's Order,
despite being expressly warned of the possible consequences
of such a failure, and despite the Court's prior
dismissal of this action with prejudice pursuant to Rule
41(b). Finally, the Court finds that alternative sanctions
would not be effective. Plaintiff is proceeding in forma
pauperis and therefore has no ability to pay a monetary
fine. The Court does not believe that dismissal
without prejudice would be an effective sanction to
promote Plaintiff's respect for this Court's
deadlines and orders, given that the threat of dismissal
with prejudice (and the Court's prior dismissal
of this action with prejudice) was not effective in
compelling Plaintiff's compliance. The Court thus
concludes that, in total, the factors weigh in favor of
dismissal of Plaintiff's action with prejudice pursuant
to Rule 41(b).
reasons discussed herein, this action will hereby be
DISMISSED WITH PREJUDICE pursuant to Rule 41(b). In addition,
the Court will CERTIFY that any appeal from this action would
not be taken in good faith and would be totally frivolous.
See Fed. R. App. P. 24.