United States District Court, E.D. Tennessee, Chattanooga
L. COLLIER, UNITED STATES DISTRICT JUDGE
a pro se prisoner’s civil rights complaint filed
pursuant to 28 U.S.C. § 1983. Now before the Court is
Defendant Lewis’s motion for summary judgment [Doc.
95]. Plaintiff has not filed a response to this motion and
the time for doing so has passed. E.D. Tenn. LR 7.1(a)(2). As
such, Plaintiff has waived any opposition thereto. Elmore
v. Evans, 449 F. Supp. 2, 3 (E.D. Tenn. 1976),
aff’d mem. 577 F.2d 740 (6th Cir. 1978); E.D.
Tenn. LR 7.2. Plaintiff also has not complied with the
Court’s order requiring that he file a notice that he
has served the executor of Defendant Morrow’s estate
with the suggestion of death [Doc. 94 at 1–2].
Accordingly, for the reasons set forth below, Defendant
Morrow will be DISMISSED, Defendant
Lewis’s motion for summary judgment [Doc. 95] will be
granted, and this action will be DISMISSED.
Court received Plaintiff’s complaint on April 25, 2012
[Doc. 2]. On April 26, 2013, the Court dismissed the
complaint for failure to state a claim [Docs. 3 and 4].
Plaintiff appealed this dismissal, and on June 12, 2014, the
United States Court of Appeals for the Sixth Circuit affirmed
the Court’s dismissal of Plaintiff’s official
capacity claims, First Amendment claim, and retaliation claim
against former defendants Posey, Inglis, Coatney, Brown,
Moore, and Schofield in their individual capacities [Doc. 7
p. 6]. The Sixth Circuit, however, vacated the Court’s
dismissal of Plaintiff’s First Amendment retaliation
claim against Defendants Brymer, Davis, Slatton, Lewis,
Moloney, and Morrow in their individual capacities and
remanded that portion of the case to this Court for further
parties later filed a stipulation of dismissal as to
Defendants Davis, Moloney, Slatton, and Brymer [Doc. 71-1],
and the Court therefore dismissed these Defendants [Doc. 72].
Accordingly, the only remaining Defendants are Defendants
Lewis and Morrow [Doc. 74].
Court previously noted, Plaintiff has filed a suggestion of
death as to Defendant Morrow [Doc. 91], but did not serve
this document on the executor of Defendant Morrow’s
estate as required by Rule 25(a)(3) of the Federal Rules of
Civil Procedure [Doc. 94 at 1]. Accordingly, the Court
ordered Plaintiff to file a notice that he had served the
suggestion of death on the executor of Defendant
Morrow’s estate within twenty days of entry of the
Court’s order and notified Plaintiff that if he did not
do so, Defendant Morrow would be dismissed from this action
[Id. at 2]. Plaintiff has not complied with this
order or otherwise responded thereto.
41(b) of the Federal Rules of Civil Procedure 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). The
Court considers four factors when considering dismissal under
Fed. R. Civ. P. 41(b):
(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 Reg’l Refuse Sys., Inc. v. Inland
Reclamation Co., 842 F.2d 150, 155 (6th Cir. 1988).
the Court finds that Plaintiff’s failure to comply with
the Court’s previous order is due to Plaintiff’s
willfulness and/or fault. Specifically, the Court sent
Plaintiff an order providing him with specific instructions
regarding service of the suggestion of death [Id. at
1–2]. Plaintiff’s failure to comply with this
order may be willful (if he received the order and declined
to follow the Court’s instructions) or negligent (if he
received the order but was unable to follow the Court’s
instructions, or if he did not receive the order because he
failed to update his address and/or monitor this action).
Either way, this factor weighs in favor of dismissal.
the second factor, the Court finds that Defendants have not
been prejudiced by Plaintiff’s failure to comply with
the Court’s order, as Defendant Morrow is deceased and
Defendant Lewis has filed a motion for summary judgment.
the third factor, the record reflects that the Court warned
Plaintiff that it would dismiss Defendant Morrow if Plaintiff
failed to ...