United States District Court, E.D. Tennessee, Chattanooga
L. COLLIER, UNITED STATES DISTRICT JUDGE.
15, 2017, Carlton V. Smith (“Petitioner”) filed
this pro se motion to vacate, set aside, or correct sentence
pursuant to 28 U.S.C. § 2255 [Doc. 211]. On October 16,
2017, the Court entered an order informing Petitioner that
his motion “is not in compliance with the [Rules
Governing Section 2255]” [Doc. 212]. Specifically,
Petitioner “failed to substantially follow an approved
form in attempting to set forth his grounds for relief”
[Id.]. Further, Petitioner's pleading “was
not sworn under penalty of perjury, but rather was signed
merely as “Respectfully Submitted” in violation
of Rule 2(c) of the Rules Governing Section 2255 Cases in the
United States District Courts [Id.]. While the Court
recognized that Petitioner is pro se, it remains that he must
comply with the relevant procedural rules.
Court directed the Clerk to send Petitioner a court-approved
preprinted form motion and allowed Petitioner thirty days to
amend his petition to comply with the Rules Governing Section
2255 cases [Id.]. The Court forewarned Petitioner
that “if he fail[ed] to timely comply with this Order,
the Court will dismiss this action for want of prosecution
and failure to comply with orders of the Court, pursuant to
Federal Rule of Civil Procedure 41(b)”
than thirty days have passed, and Petitioner has not filed an
amended pleading or response to the Court's order.
Federal 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.
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 Petitioner's
failure to prosecute this action can be attributed to his own
willfulness or fault. Despite receiving this Court's
order, Petitioner failed to submit an amended petition on the
court-approved preprinted form provided to him, or respond to
the Court in any way. Pursuant to Local Rule 83.13, it is the
duty of the pro se party to monitor the progress of the case
and to prosecute or defend the action diligently.
See E.D. Tenn. L.R. 83.13. Pro se status does not
exempt a petitioner from the requirement that he comply with
relevant rules of procedural and substantive law. Hulsey
v. Texas, 929 F.2d 168, 171 (5th Cir. 1991).
Accordingly, the Court finds that 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 Petitioner 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. The
Court does not believe that a dismissal without
prejudice would be an effective sanction to promote
Petitioner's respect for this Court's deadlines and
orders, given that the threat of dismissal with
prejudice was not effective in compelling Petitioner's
compliance. The Court thus concludes that, in total, the
factors weigh in favor of dismissal of Petitioner's
action with prejudice pursuant to Rule 41(b).
APPROPRIATE ORDER WILL ENTER.
 The Federal Rules of Civil Procedure
apply in the context of habeas suits to the extent that they
are not inconsistent with the Habeas Corpus Rules. See Rule
12 of the ...