United States District Court, E.D. Tennessee
ANDRE D. ROSS, Petitioner,
KENNY CAULEY, Respondent.
A. VARLAN, CHIEF UNITED STATES DISTRICT JUDGE.
April 10, 2017, Andre D. Ross (“Petitioner”)
filed a “Notice to Accept U.S.C. 2254 Motion”
[Doc. 1] and a motion to proceed in forma pauperis
[Doc. 1]. On December 12, 2017, the Court granted
Petitioner's motion to proceed in forma pauperis
and advised Petitioner that his pleading was not in
compliance with the Rules Governing Section 2254 Cases [Doc.
6]. Specifically, the Court found that Petitioner failed to
substantially follow an approved form in attempting to set
forth his grounds for relief [Id.]. Nevertheless,
the Court gave Petitioner a limited opportunity to clarify
his grounds for relief and bring his filing into compliance
with the relevant rules [Id.]. The Court directed
the Clerk to send Petitioner a court-approved preprinted form
motion used to file motions to vacate under § 2254 and
ordered Petitioner to complete the form motion, sign it, and
return it to the Court within thirty days of the date of the
Order [Id.]. Petitioner was forewarned 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” [Id. at
than thirty days have passed, and Petitioner 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,
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.”).
Court looks to 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 also 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. Notably, the Order sent to
Petitioner's address on file was not returned to the
Court. Petitioner'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, in either case, the first factor weighs
in favor of dismissal.
second factor, however, weighs against dismissal. As
defendant Kenny Cauley has not yet been served, he has not
been prejudiced by Petitioner's inactions.
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.
the Court finds that alternative sanctions would not be
effective. Petitioner has 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 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
Petitioner's compliance. The Court thus concludes that,
in total, the relevant factors weigh in favor of dismissal of
Petitioner's action with prejudice pursuant to Rule
reasons discussed herein, this action is hereby
DISMISSED WITH PREJUDICE pursuant to Rule
APPROPRIATE ORDER WILL ENTER.