United States District Court, E.D. Tennessee, Greeneville
MEMORANDUM OPINION AND ORDER
RONNIE GREER UNITED STATES DISTRICT JUDGE
Court is in receipt of a pro se complaint under 42 U.S.C.
§ 1983 [Doc. 1] and a motion for leave to proceed in
forma pauperis [Doc. 2] filed by Paul Linzel Clawson a
prisoner at the Carter County Detention Center. On March 20,
2017, the Court entered an Order advising Plaintiff that his
motion for leave to proceed in forma pauperis was
deficient, as the application was not accompanied by a
certified copy of his inmate trust account for the previous
six-month period [Doc. 4 (citing 28 U.S.C. §
1915(a)(2))]. The Court advised Plaintiff that he
“shall . . . pay the full filing fee or . . . submit
his certified trust account statement” within thirty
days from the date of the Court's Order [Id.].
The Court further advised Plaintiff that, “if he
fail[ed] to comply fully with this Order within the time
required, the Could shall presume that he is not a pauper,
will assess the full filing fee, and will not reinstate the
case, even if Plaintiff later pays the fee or requests pauper
Order was mailed to Plaintiff at the address listed on his
complaint - that is, the Carter County Detention Center [Doc.
1, 4]. That copy of the Court's Order was returned to
sender indicating that he is no longer at that facility [Doc.
5]. However, because Plaintiff provided his permanent home
address to the Court in his complaint, the Clerk sent a
second copy of the Court's Order to Plaintiff, this time
to his home address, on April 28, 2017 [See unnumbered docket
entry dated April 28, 2017]. Additionally, in order to give
Plaintiff the best opportunity to respond, the Court also
sent a copy of the Court's Order to the address of
Plaintiff's nearest relative provided in his complaint
[See unnumbered docket entry dated April 28, 2017]. Neither
mailing has been returned to the Court. More than thirty days
have now passed and Plaintiff has not filed a notice of
change of address with the Court or responded to this
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 dismissal 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 fine. 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