United States District Court, E.D. Tennessee, Greeneville
W. PHILLIPS SENIOR UNITED STATES DISTRICT JUDGE
a pro se prisoner's civil rights action brought under 42
U.S.C. § 1983 by Bryan Perry Nelson Covington
(“Plaintiff”). Upon initial review of
Plaintiff's motion to proceed in forma pauperis
[Doc. 1], the Court issued a deficiency order notifying
Plaintiff that he had neither paid the filing fee nor
submitted the proper documents required to proceed in
forma pauperis under 28 U.S.C. § 1915(a)(2) [Doc.
3]. Plaintiff further was warned that unless he either paid
the full filing fee or submitted the appropriate in forma
pauperis documentation, properly signed and completed,
within thirty days of the entry of the deficiency order, the
Court would presume that he is not a pauper, assess the full
filing fee, and dismiss the case for failure to prosecute
[Doc. 3 pp. 1-2]. The mail containing this order was returned
to the Court as undeliverable because Plaintiff is no longer
at the institution at the address Plaintiff provided to the
Court [Doc. 4].
than thirty days now have passed since the entry of the
Court's deficiency order on August 24, 2017, and
Plaintiff has failed to submit the appropriate documentation
or to respond in any way to that order, Plaintiff's
motion for leave to proceed in forma pauperis [Doc.
1] is DENIED and Plaintiff hereby is
ASSESSED total court fees in the amount of
four hundred ($400.00), consisting of a filing fee of three
hundred fifty dollars ($350.00), and an administrative fee of
fifty dollars ($50.00). See 28 U.S.C. §
1914(a); Judicial Conference of the United States, District
Court Miscellaneous Fee Schedule # 14 (effective December 1,
2016). The Clerk is DIRECTED to forward a
copy of this Order to the Court's financial deputy.
pursuant to Fed.R.Civ.P. 41(b), this action will be
DISMISSED for want of prosecution and for
failure to comply with the Court's deficiency order and
the local rules of court. McGore v. Wrigglesworth,
114 F.3d 601, 605 (6th Cir. 1997) overruled on other
grounds by Jones v. Bock, 549 U.S. 199 (2007).
Rule of Civil Procedure 41(b) provides for involuntary
dismissal of a complaint if “the plaintiff fails to
prosecute or to comply with these rules or a court order . .
. .” See, e.g., Knoll v. Am. Tel.
& Tel. Co., 176 F.3d 359, 362-63 (6th Cir. 1999).
Dismissal under Fed.R.Civ.P. 41(b) may be sua
sponte. Jourdan v. Jabe, 951 F.2d 108, 109 (6th
Cir. 1991). In determining whether involuntary dismissal is
warranted under Fed.R.Civ.P. 41(b) for failure to prosecute,
a court is to consider four factors:
(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.
Schafer v. City of Defiance Police Dep't, 529
F.3d 731, 737 (6th Cir. 2008).
the first factor, the Court finds that Plaintiff's
failure to respond to or comply with the deficiency order is
due to his own fault. A copy of the Court's deficiency
order was mailed to the Hamblen County Jail at the last
address provided to the Court by Plaintiff but was returned
as undeliverable [Doc. 4], indicating that he no longer was
located there. Local Rule 83.13 explicitly imposes upon a pro
se party the duty to notify the Clerk of any change of
address within 14 days of the change, as well as the
obligation to monitor the progress of his case and prosecute
it diligently. E.D. Tenn. L.R. 83.13. Here, Plaintiff did not
receive the deficiency order through his own fault in failing
to notify the court of his address change. Accordingly, the
first factor weighs in favor of dismissal.
the second factor, the Court finds that, because service was
not issued, Defendants have not been prejudiced by
Plaintiff's failure to comply with the Court's order.
the third factor, the record reflects that Plaintiff
expressly was cautioned that the Court would dismiss this
case if he failed to comply with the Court's deficiency
order within the allotted time [Doc. 3 pp. 1-2]. Thus, this
factor also weighs in favor of dismissal.
as to the fourth factor, the Court finds that any alternative
sanctions would not be effective. The Court already provided
Plaintiff with an opportunity to remedy the initial
deficiency in his motion for leave to proceed in forma
pauperis and placed him on notice that his failure to
comply with the Court's order would be grounds for
dismissal. Nevertheless, Plaintiff has not cured the
deficiency in his in forma pauperis application,
failed to notify the Court of his change of address as
required under the local rules, and has not monitored the
progress of the case or otherwise pursued this action in any
way since the filing of the complaint. Accordingly, the Court
finds that any further attempts to prod Plaintiff into
compliance through the imposition of a lesser sanction than
dismissal would be futile.
for the reasons set forth above, the Court concludes that the
relevant factors weigh in favor of the dismissal of this
action pursuant to Rule 41(b). See, e.g.,
White v. City of Grand Rapids, 34 Fed.Appx. 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”).
accordance with 28 U.S.C. § 1915(a)(3) and Rule 24 of
the Federal Rules of Appellate Procedure, the Court
CERTIFIES that any appeal from this action
would not be taken in good faith and would be totally
frivolous. Therefore, any application by Petitioner for ...