United States District Court, E.D. Tennessee
FRED L. VITTATOE Plaintiff,
CARTER COUNTY JAIL, and CARTER COUNTY, Defendants.
Jordan United States District Judge.
Court is in receipt of a complaint under 42 U.S.C. §
1983 [Doc. 2] and a motion for leave to proceed in forma
pauperis [Doc. 1] filed pro se by Fred L. Vittatoe. At
the time he filed his Complaint and in forma
pauperis motion, Plaintiff was incarcerated at the
Carter County Detention Center [see Docs. 1, 2].
However, after filing his Complaint and motion for leave to
proceed in forma pauperis, Plaintiff filed a notice
of change of address with the Court, reflecting that he had
been released from incarceration [Doc. 5].
April 27, 2017, the Court entered an Order, advising
Plaintiff that his motion for leave to proceed in forma
pauperis was deficient, as it was not accompanied by a
certified copy of his inmate trust account for the previous
six-month period. [Doc. 6 (citing 28 U.S.C. §
1915(a)(2))]. The Court noted that, in such situations, the
Court would typically “order the pro se Plaintiff to
obtain a copy of his inmate trust account statement from
prison administrators” [Id.]. However, given
that Plaintiff is no longer incarcerated, the Court instead
directed the Clerk to send Plaintiff a blank copy of the form
application for leave to proceed in forma pauperis
for non-prisoners, and ordered Plaintiff to “complete,
sign, and return the form within thirty days
of the date of entry of this Order” [Id.].
Plaintiff was placed on notice that his failure to comply
within the time required would lead the Court to presume that
Plaintiff is not a pauper, assess the full amount of fees,
and order the case dismissed for want of prosecution
[Id. (citing Fed.R.Civ.P. 41(b))].
Order, along with a copy of the relevant form, was mailed to
Plaintiff at the most recent address that he provided to the
Court. More than 30 days have now passed, and Plaintiff has
not filed any response to the Court's Order, nor has the
Order been returned to the Court as undeliverable.
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 finds that Plaintiff's
failure to respond or comply is, in fact, the fault of the
Plaintiff. Plaintiff's instant failure to respond may be
willful (if he received the Order and declined to respond),
or it may be negligent (if he did not receive the Order
because he has once again moved and failed to update his
address and to monitor this action pursuant to Local Rule
83.13). Either way, the fault lies with
Plaintiff, and the first factor weighs in favor of dismissal.
The 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 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 is hereby 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 is
DENIED leave to appeal in forma
pauperis. See 28 U.S.C. § 1915(a)(3); Fed.
R. App. P. 24.
IS SO ORDERED.
The Court notes that, pursuant
to Local Rule ...