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Waller v. Morrow

United States District Court, E.D. Tennessee, Chattanooga

August 30, 2017

RONALD BRADFORD WALLER, Plaintiff,
v.
JIM MORROW and ANDREW LEWIS, Defendants.

          MEMORANDUM OPINION

          CURTIS L. COLLIER, UNITED STATES DISTRICT JUDGE

         This is 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.

         I. Procedural History

         The 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 proceedings [Id.].

         The 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].

         II. Defendant Morrow

         As the 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.

         Rule 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).

         First, 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.

         As to 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.

         As to the third factor, the record reflects that the Court warned Plaintiff that it would dismiss Defendant Morrow if Plaintiff failed to ...


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