United States District Court, E.D. Tennessee
A. Varlan Chief United States District Judge
pro se petition for writ of habeas corpus under 28 U.S.C.
§ 2254 was filed on February 2, 2015 [Doc. 2]. On
February 11, 2015, the Court ordered Petitioner to correct
deficiencies in both his petition and application to proceed
in forma pauperis [Doc. 3]. After Petitioner filed a
new motion for leave to proceed in forma pauperis,
the Court directed Respondent to file a response to the
petition on February 10, 2017 [Doc. 6]. Respondent then filed
a motion to compel the filing of a corrected § 2254
petition, stating that the petition failed to follow the form
required by Rule 2(d) of the Rules Governing Section 2254
cases, as only the first and last page of the form were
included in the petition [Doc. 8].
December 4, 2017, the Court granted Respondent's motion
to compel, and ordered Petitioner to file a complete form
petition, in compliance with Rule 2 of the Rules Governing
Section 2254 cases, within thirty days [Doc. 10 p. 2]. The
Court advised Petitioner that “failure to comply with
this Order within the allotted time frame may result in the
dismissal of this action for failure to prosecute and/or
failure to comply with a court order” [Id.].
than thirty days have passed, and Petitioner has failed to
submit a completed petition, or otherwise respond 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, LLC 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.”). The Court examines four factors when
considering dismissal under Rule 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.
the first factor, the Court finds that Petitioner's
failure to respond or comply can be attributed to his own
willfulness or fault. Petitioner failed to file a completed
§ 2254 petition, despite being instructed by the Court
to do so and being sent a preprinted form. 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. “Pro se status does not exempt a
plaintiff from the requirement that he comply with relevant
rules of procedural and substantive law.” Thorpe v.
Ragozzine, No. 1:07-cv-155, 2008 WL 1859878, at *1 (E.D.
Tenn. Apr. 23, 2008) (citing Hulsey v. Texas, 929
F.2d 168, 171 (5th Cir. 1991)). Accordingly, the Court finds
that the first factor weighs in favor of dismissal.
second factor does not weigh in favor of dismissal, as
Respondent has not been prejudiced by the delay. However, 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. Petitioner filed a motion
for leave to proceed in forma pauperis; therefore,
the Court has no indication that Petitioner has the ability
to pay a monetary fine. The Court thus concludes that, in
total, the factors weigh in favor of dismissal of
Petitioner's action with prejudice pursuant to Rule
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, 110 (6th Cir. 1991). The Court
CERTIFIES that any appeal from this action
would not be taken in good faith and would be totally
frivolous. See Fed. R. App. P. 24. Therefore, should
Petitioner file a notice of appeal, he will be
DENIED leave to appeal in forma
pauperis. See 28 U.S.C. § 1915(a)(3); Fed.
R. App. P. 24.