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Harbison v. Thompson

United States District Court, M.D. Tennessee, Nashville Division

January 30, 2017

EDWARD JEROME HARBISON, Plaintiff,
v.
EVELYN THOMPSON et al., Defendants.

          MEMORANDUM OPINION

          ALETA T. TRAUGER UNITED STATES DISTRICT JUDGE.

         The plaintiff, Edward Jerome Harbison, is presently incarcerated at the Riverbend Maximum Security Institution in Nashville, TN. Before the court is the plaintiff’s response to the order to show cause issued by the magistrate judge.

         In order to ensure the prompt resolution of this matter, the court will vacate the referral to the magistrate judge and considers the plaintiff’s response to the order to show cause (ECF Nos. 134-138.)

         Additionally, because the plaintiff timely responded to the magistrate judge’s order to show cause, the court will discharge the order to show cause. However, because the plaintiff has failed to diligently prosecute this action, it will be dismissed.

         I. FACTS AND PROCEDURAL HISTORY

         On August 27, 2013, the plaintiff initiated this action by filing a motion for preliminary injunction. (ECF No. 1.) Because Plaintiff had not paid the filing fee or applied to proceed in forma pauperis and because he had not filed a Complaint, the court ordered the plaintiff to correct these omissions. (ECF No. 2). The plaintiff sought more time to comply with the court’s order, which the court granted. (ECF Nos. 5-6.) On December 4, 2013, the plaintiff filed an Amended Complaint[1] and an application to proceed in forma pauperis. (ECF Nos. 10-11.) In the course of considering the plaintiff’s application to proceed in forma pauperis, the court ascertained that the plaintiff was prohibited from proceeding in forma pauperis because he had three-strikes under 28 U.S.C. 1915(g) and because the allegations in plaintiff’s Cmplaint did not satisfy the “imminent-danger” exception to the three-strikes rule. Id. Accordingly, the court ordered the plaintiff to pay the civil action filing fee within 30 days and warned the plaintiff that failure to do so would result in the dismissal of this action for failure to prosecute. (ECF No. 14.) After receiving additional time to do so, the plaintiff paid the $400 filing fee on February 11, 2014. (ECF No. 18-19, 23.) Thereafter, the court referred this case to the assigned magistrate judge for further proceedings.

         After receiving authorization from the magistrate judge to do so, on May 14, 2014, the plaintiff filed another Amended Complaint, the operative pleading in this action, in which he named nine defendants: Derrick D. Schofield, Commissioner of the Tennessee Department of Corrections (“TDOC”); Benjamin F. Bean, Correctional Program Manager Inmate Grievances and Disciplinary Appeals; Charles Wayne Carpenter, Warden RMSI; Tony Mays, Deputy Warden RMSI; William Smith, RMSI Inmate Job and Classification Coordinator; Michael Bryant, RMSI Education Supervisor; Gregory Leonard, RMSI Grievance Chairperson; Evelyn Thompson, RMSI Clerical Correctional Officer. (ECF No. 17, 19, 32.) The gist of the plaintiff’s Amended Complaint is that he was wrongfully deprived of his position as a law library aide, a position which, the plaintiff alleges, required him to: (1) assist in preparing civil or criminal cases using general knowledge of reference books, material and indexes; (2) assist in preparing legal documents and writs; (3) investigate facts and law of cases; and (4) assist in preparing legal forms. (ECF No. 32 at Page ID# 156.) In addition to the Amended Complaint, the plaintiff filed a motion to appoint counsel, along with a memorandum in support of the motion, seven sworn affidavits and summonses for each defendant to be issued by the Clerk of Court. (ECF Nos. 33-43.) Each of the summonses prepared by the plaintiff, issued by the Clerk of Court and then sent back to the plaintiff so that he could serve the defendants-contained the following statement: “[i]f you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.” (ECF No. 43.) On May 16, 2014, the magistrate judge denied the plaintiff’s motion to appoint counsel. (ECF No. 44.) The plaintiff filed a response in opposition to the magistrate judge’s decision, which the court construed as objections to the magistrate judge’s order and overruled. (ECF Nos. 47, 51.)

         On June 9, 2014, defendant Bean filed a pro se motion for extension of time to respond to the Amended Complaint, which the magistrate judge granted. (ECF Nos. 48-49.)

         On June 19, 2014, the plaintiff filed a motion to supplement his motion for appointment of counsel. (ECF No. 57.) On June 27, 2014, the plaintiff filed a motion in which he advised the court that, on June 2, 2014, defendant Gregory Leonard “made threats to Plaintiff about sending him pleadings, the Plaintiff forwarded his copy to the Clerk’s Office with a self-addressed envelope to show that his copy was stamped as filed and [to] be sent back to Defendant, Gregory Leonard.” (ECF No. 58 at Page ID# 552.) That same day, the plaintiff filed two additional motions-a motion seeking to voluntarily dismiss defendants Mays and Andrews,[2] and a motion alerting the court to issues the plaintiff was having obtaining postage for legal mail. (ECF Nos. 59-60.)

         On June 30, 2014, defendant Charles Carpenter filed a pro se motion for extension of time to file an answer, which the magistrate judge granted. (ECF Nos. 61-62.)

         On July 9, 2014, the plaintiff filed a motion alerting the court to the fact that, although defendants Bean and Carpenter had sought extensions of time to answer the Complaint, they never responded to the plaintiff’s notice of “Waiving Service of Summons.”[3] (ECF No. 67.) Additionally, the plaintiff noted that none of the other defendants had made an appearance or responded to plaintiff’s notice of “Waiving Service of Summons,” despite the fact that the plaintiff had provided each defendant with a self-addressed, stamped envelope. (Id.) Finally, the plaintiff advised the court that he would be sending a second notice to these defendants. (Id.) Plaintiff filed with the court, and appears to have served all defendants with, his typewritten version of the court’s form AO 399, “Waiver of the Service of Summons.” (ECF No. 72.) Notably, the document the plaintiff prepared (and the court’s AO 399 form) contain the following statement: “[i]f I fail [to respond within the time allowed], a default judgment will be entered against me.” (Id. at Page ID# 611.)

         On July 14, 2014, defendants Bean and Carpenter filed a motion to dismiss. (ECF Nos. 74-75.)

         On July 16, 2014, the plaintiff filed a motion alerting the court to an error in his waiver of service document and explaining that he had corrected the error. (ECF No. 77.)[4] On July 23, 2014, plaintiff submitted a letter to the court seeking a copy of the case docket. (ECF No. 78.) On July 31, 2014, the plaintiff filed an opposition to the motion to dismiss. (ECF Nos. 79-80.) On August 4, 2014, he filed two supplemental documents in support of his opposition (ECF Nos. 80-81) and on August 6, 2014, he filed yet two more supplements in support of his opposition to the motion to dismiss (ECF Nos. 82, 84.)

         Defendants Carpenter and Bean sought permission to file a reply to the plaintiff’s many filings in opposition to their motion, which was granted by the magistrate judge. (ECF Nos. 83, 86.) On August 8, 2014, defendants Bean and Carpenter filed their reply. (ECF No. 87.) On August 12, 2014, the plaintiff filed four documents related to defendants’ motion to dismiss and this litigation. (ECF Nos. 89-92.) From August 26, 2014 through November 12, 2014, the parties filed additional briefing regarding the motion to dismiss filed by defendants Bean and Carpenter. (ECF Nos. 94, 98, 100, 102-104.)

         On February 5, 2015, the magistrate judge issued a report and recommendation granting the pending motion to dismiss. (ECF No. 114.) On February 23, 2015, the plaintiff filed his objections to the report and recommendation. (ECF No. 126.) On March 10, 2015, the court issued a memorandum opinion and order, overruling the plaintiff’s objections, accepting ...


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