United States District Court, E.D. Tennessee, Knoxville
W. Phillips Senior United States District Judge
prisoner, Joshua Lynn Carr (“Plaintiff”)
initiated this action on April 24, 2017 when he filed a civil
rights complaint pursuant to 42 U.S.C. § 1983 [Doc. 2]
and a motion for leave to proceed in forma pauperis
[Doc. 1]. On July 19, 2017, the Court entered an Order
advising Plaintiff that his motion for leave to proceed
in forma pauperis was deficient, as it was not
accompanied by a certified copy of his inmate trust account
for the previous six-month period [Doc. 3 (citing 28 U.S.C.
§ 1915(a)(2))]. The Court advised Plaintiff that he
“shall . . . pay the full filing fee or . . . submit
the required documents” within thirty days from the
date of the Court's Order [Id.]. The Court
forewarned Plaintiff that, “if he fail[ed] to fully
comply with this Order within the time required, the Court
shall presume that Plaintiff is not a pauper, shall assess
the full amount of fees, and shall order the case dismissed
for want of prosecution” See Fed. R. Civ. P.
Order was first mailed to Plaintiff at the address listed on
his application for in forma pauperis status - that
is, the Blount County Detention Center [See Doc. 1
p. 1]. That copy of the Court's Order was returned as
“Undeliverable” indicating that Plaintiff was no
longer at that facility [Doc. 4]. However, because Plaintiff
also provided his permanent home address to the Court in his
Complaint, the Clerk sent a second copy of the Court's
Order to Plaintiff, this time to his home address, on
September 28, 2017. [See unnumbered docket entry
dated September 28, 2017]. That Order has not been returned
to the Court.
than 30 days have now 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. Specifically, the Order sent to
Plaintiff's home address was not returned to the Court.
Plaintiff's failure to respond to the Court's Order
may be willful (if he received the Order and declined to
respond), or it may be negligent (if he did not receive the
Order 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 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 Plaintiff's inactions.
contrast, the third factor clearly weighs in favor of
dismissal, because the record reflects that the Court warned
Plaintiff that the Court would dismiss this case if he failed
to comply with the Court's Order [Doc. 3 p. 2].
the Court finds that alternative sanctions would not be
effective. Plaintiff has 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 does not believe that a dismissal
without prejudice would be an effective sanction to
promote Plaintiff's respect for this Court's
deadlines and orders, given that the threat of dismissal
with prejudice was not effective in compelling
Court concludes that, in total, the factors weigh in favor of
dismissal of Plaintiff's action. Thus, this case will be