United States District Court, E.D. Tennessee, Chattanooga
MEMORANDUM AND ORDER
RONNIE GREER UNITED STATES DISTRICT JUDGE
Court is in receipt of a complaint under 42 U.S.C. §
1983 [Doc. 1] and a motion for leave to proceed in forma
pauperis [Doc. 2] filed pro se by Jaquan Johnson, a
prisoner at the Silverdale Detention Center. On October 3,
2016, the Court entered an Order, advising Plaintiff that his
motion for leave to proceed in forma pauperis was
deficient, as the application was incomplete and it was not
accompanied by a certified copy of his inmate trust account
for the previous six-month period [Doc. 3 (citing 28 U.S.C.
§ 1915(a)(2))]. The Court advised Plaintiff that he
“shall . . . pay the full filing fee or . . . submit
the required documents” within thirty days from the
date of the Court's Order [Id.]. The Court
further advised Plaintiff that, “if he fail[ed] to
fully comply with this Order within the time required, the
Court shall presume that Plaintiff is not a pauper, shall
assess the full amount of fees, and shall order the case
dismissed for want of prosecution.” [Id.].
Order was mailed to Plaintiff at the address listed on his
complaint - that is, the Silverdale Detention Center [Doc. 1,
3]. That copy of the Court's Order was returned to sender
indicating that Plaintiff is no longer at that facility [Doc.
4]. However, because Plaintiff provided his permanent home
address to the Court in his application to proceed in
forma pauperis, the Clerk sent a second copy of the
Court's Order to Plaintiff, this time to his home
address, on March 22, 2017 [See unnumbered docket entry dated
March 22, 2017]. That Order has not been returned to the
Court. More than thirty (30) days have now passed, and
Plaintiff has not filed any response to the Court's
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. 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 doubted.”).
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 finds that Plaintiff's
failure to respond or comply is, in fact, the fault of the
Plaintiff. Pursuant to Local Rule 83.13, it is the duty of a
pro se party to promptly notify the Clerk and the other
parties to the proceedings of any change in his or her
address, to monitor the progress of the case, and to
prosecute or defend the action diligently. E.D. Tenn. L.R.
83.13. Notification of a change of address must be
accomplished by filing a notice with the Clerk and service of
the notice upon all other parties within fourteen (14) days
of the change of address. E.D. Tenn. L. R. 83.13. The failure
of a pro se party to timely respond to an order or pleading
addressed to the last address provided to the Clerk may
result in dismissal of the case or other appropriate action.
E.D. Tenn. L.R. 83.13. Since the fault lies with Plaintiff,
the first factor weighs in favor of dismissal.
second factor, however, weighs against dismissal: since the
Defendants have not yet been served or made to appear, they
have not been prejudiced by any delay. 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. Finally, the Court finds that alternative sanctions
would not be effective. Plaintiff filed a motion for leave to
proceed in forma pauperis; therefore, the Court has
no indication that Plaintiff has the ability to pay a
monetary sanction. 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 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, Plaintiff is ASSESSED the full
filing fee of $400.00, and this action will be DISMISSED WITH
PREJUDICE pursuant to Rule 41(b). The Court CERTIFIES that
any appeal from this action would not be taken in good faith
and would be totally frivolous. See Fed. R. App. P.
24. Accordingly, should Plaintiff file a notice of appeal, he