United States District Court, E.D. Tennessee
A. VARLAN, CHIEF UNITED STATES DISTRICT JUDGE
pro se prisoner's civil rights action under 42
U.S.C. § 1983 is before the Court on the postal return
of the Court's previous Order mailed to Plaintiff at the
last address he provided to the Court [Doc. 15]. The
correspondence was returned to the Court by the postal
authorities on June 12, 2017, with the face of the envelope
marked undeliverable and “Return to Sender, ”
“Refused, ” and “Unable to Forward”
[Id.]. Previously, on May 9, 2017, the Court issued
an Order stating “unless within ten (10) days of the
date on this Order, Plaintiff notifies the Court of his
current address and indicates that he intends to continue to
pursue his claims against Defendants, the Court, without
further notice to Plaintiff, will dismiss his § 1983
action.” [Doc. 14 p. 2].
has failed to apprise the Court of his current address,
despite the Court's earlier Order providing him with an
opportunity to demonstrate that he intends to litigate this
case. Without Plaintiff's correct and current address,
neither the Court nor Defendants can communicate with him
regarding his case. In fact, Local Rule 83.13 not only
requires pro se litigants, such as Plaintiff, to
file a written notice with the Clerk, but also requires
written notice to be given to all parties, within fourteen
days of any change of address. See E.D. Tenn. L.R.
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 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 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.
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 also weighs in favor of dismissal; as the
Defendants have already been served, they have been
prejudiced by the delay. Additionally, 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).
this action will be DISMISSED WITH
PREJUDICE, sua sponte, for want of
prosecution. See Fed. R. Civ. P. 41(b); see also
Link v. Wabash R.R. Co., 370 U.S. 626, 630- 31 (1962)
(recognizing the court's authority to dismiss a case
sua sponte for lack of prosecution); White v.
City of Grand Rapids, 34 F. App'x 210, 211 (6th Cir.
2002) (finding that a pro se prisoner's
complaint “was subject to dismissal for want of
prosecution because he failed to keep the district court
apprised of his current address”); Jourdan v.
Jabe, 951 F.2d 108 (6th Cir. 1991). The Court
CERTIFIES that any appeal from this action
would not be taken in good faith and would be totally