United States District Court, E.D. Tennessee, Knoxville
prisoner, Joseph Anthony Layne Cole (“Plaintiff”)
initiated this action on May 23, 2017 when he filed a civil
rights complaint pursuant to 42 U.S.C. § 1983 [Doc. 1].
On November 1, 2017, in compliance with the Prison Litigation
Reform Act (“PLRA”), the Court screened
Plaintiff's complaint and sua sponte dismissed
those claims that were frivolous or malicious, failed to
state a claim for relief, or were against a defendant who is
immune [Doc. 5]. At that time, Plaintiff was ordered to
complete service packets for the remaining defendants and to
return those packets to the Clerk's Office
[Id.]. The Court also noted that Plaintiff shall
promptly notify the Court of any address changes within
fourteen days of any such change [Id.]. Plaintiff
was forewarned that failure to return the completed service
packets or failure to update the Court with his current
address within the time required could result in the
dismissal of this action [Id.]. The Order was mailed
to Plaintiff at the address listed on his complaint. However,
the Order filed by this Court was returned as
“Undeliverable” noting that Plaintiff is no
longer at the facility [Doc. 6]. On December 15, 2017, this
Court entered another Order, this time directing Plaintiff to
show cause within fourteen days as to why this case should
not be dismissed for failure to prosecute and/or failure to
follow the order of this Court [Doc. 7]. Plaintiff was
advised that “failure to comply with the terms of this
Order will result in dismissal of his case”
[Id.]. On December 27, 2017, the Order was returned
as “Undeliverable” and “Unable to
forward” [Doc. 8].
than fourteen days have passed and Plaintiff has not filed
any 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 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.
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 Plaintiff's
failure to prosecute this action can be attributed to his own
willfulness or fault because he failed to update his address
and/or monitor this action as required by Local Rule 83.13.
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. Accordingly, the Court finds that the first factor
weighs in favor of dismissal.
second factor, however, weighs against dismissal; since
defendants have not yet been served, they have not been
prejudiced by Plaintiffs inactions.
contrast, the third factor clearly weighs in favor of
dismissal, because the record reflects that the Court warned
Plaintiff multiple times that the Court would dismiss this
case if he failed to comply with the Court's Order [Doc.
5 p. 6, Doc. 7 p. 2].
the Court finds that alternative sanctions would not be
effective. This Court previously granted Plaintiffs motion
for leave to proceed in forma pauperis based on a
review of his prisoner trust fund account statement [Doc. 4].
The financial data provided indicates that Plaintiff does not
have the ability to pay a monetary fine. Nor does the Court
believe that a dismissal without prejudice would be
an effective sanction to promote Plaintiffs respect for this
Court's deadlines and orders, given that the threat of
dismissal with prejudice was not effective in
compelling Plaintiffs compliance. 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).
reasons discussed herein, this action will be
DISMISSED WITH PREJUDICE pursuant to Rule