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Moore v. Jones

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

August 15, 2017

BENNY JOE MOORE, Plaintiff
v.
OFFICER J.W. JONES, Defendant

         Jury Demand

          REPORT AND RECOMMENDATION

          JOE B. BROWN United States Magistrate Judge.

         For the reasons stated below, the Magistrate Judge recommends that this case be dismissed with prejudice for failure to prosecute and to obey Court orders.

         BACKGROUND

         The Plaintiff filed a complaint against Officer Jones and the Smyrna Police Department on September 8, 2016 (Docket Entry 1). After initial review (Docket Entry 8) the Plaintiff was allowed to proceed in forma pauperis against Officer Jones. The matter was referred to me for case management and a report and recommendation on any dispositive matter.

         As summarized in the District Judge's review, the Plaintiff alleged that on June 14, 2016, he was in a physical altercation with someone else and the police were called. He alleged that knowing that he had two warrants for failure to appear he went outside to wait for the arrival of the police and that when they arrived he laid on his stomach with his hands behind his back, offering no resistance. He alleged that Defendant Jones flew into a “blind rage” over a suspicion that the Plaintiff had beaten a female victim and picked up the Plaintiff by his arms so aggressively that he snapped the Plaintiff's forearm. He alleges that the injury caused him to have a plate and screw used to repair his arm.

         The Court found that this did state a colorable claim against Officer Jones for the use of excessive force.

         After service of process was complete, an answer was filed (Docket Entry 15), and a scheduling order (Docket Entry 16) was entered. The scheduling order specifically provided that all discovery would be completed by June 13, 2017, and that the Plaintiff was required at all times to keep a current address on file with the court.

         On February 6, 2017, the Plaintiff filed a notice of change of address (Docket Entry 22).

         Subsequently, Officer Jones filed a motion on July 11, 2017 (Docket Entry 28) to compel the Plaintiff to answer interrogatories and requests for production. In the motion he alleged that the first set of interrogatories and requests for production of documents were sent to the Plaintiff in January of 2017, while he was still incarcerated. A second set of discovery was then mailed to his home in Alabama at the address that he had provided and is reflected on the court docket sheet. They allege that his mother signed for the discovery documents sent to Alabama on February 13, 2017. When a timely response was not received the Defendant's counsel state they mailed a letter to the Plaintiff informing him the responses were overdue and offering an extension to April 5, 2017, to respond.[1] They allege that as of July 11, 2017, they have received no response whatever from the Plaintiff.

         As a result of this motion the undersigned entered an order (Docket Entry 30) for the Plaintiff to show cause by July 31, 2017, why the undersigned should not recommend that his case be dismissed for failure to respond to discovery and to prosecute his case. The Plaintiff was advised that he could satisfy the show cause order by fully complying with the discovery requests that were sent to him by July 31, 2017. The Plaintiff was specifically warned that failure to show cause or to comply with the discovery requests would result in a recommendation that his case be dismissed for failure to prosecute and to obey Court orders.

         The Court has received no response one way or the other from the Plaintiff and the Defendant has now filed a motion to dismiss (Docket Entry 31) noting that they have not received any response to their discovery requests as of the date of filing their motion on August 14, 2017.

         An action is subject to dismissal for want of prosecution where the pro se litigant fails to comply with the Court's order, and engages in a pattern of delay. Gibbons v. Assets Acceptance Corporation, 2006 WL 3452521, *1 (S.D. Ohio, Nov. 29, 2006).

         The Courts have the inherent power, exercisable in its sound discretion, to dismiss a case for want of prosecution in order to management their own affairs so as to achieve the orderly and expeditious disposition of cases. Link v. Wabash Railroad, 370 U.S. 626, 630-31 (1962); Smith v. ...


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