United States District Court, E.D. Tennessee, Knoxville
S. MATTICE, JR. UNITED STATES DISTRICT JUDGE.
a pro se prisoner's petition for habeas corpus relief
filed under 28 U.S.C. § 2254. On November 27, 2017, the
Court entered an order providing that Petitioner would have
fifteen days from the date of entry of the order to pay the
full filing fee or to submit the necessary documents to
proceed in forma pauperis [Doc. 2]. The Court also
warned Petitioner that if he failed to timely comply with
that order, the Court would presume that Petitioner is not a
pauper, assess the full amount of fees, and order the case
dismissed for want of prosecution and/or failure to comply
with Court orders [Id. at 1]. More than eighteen
days have passed since entry of this order and Petitioner
has not complied therewith.
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). The
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 Reg'l 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 respond to or comply with the Court's previous
order is due to Petitioner's willfulness and/or fault.
Specifically, the Court sent Petitioner an order providing
him with instructions as to how to proceed in this matter and
directing the Clerk to send Petitioner the necessary
documents [Doc. 2]. Petitioner's failure to respond 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). Either way, the
first factor weighs in favor of dismissal.
the second factor, the Court finds that Respondent has not
been prejudiced by Petitioner's failure to comply with
the Court's order, as the Court has not yet ordered
Respondent to respond to the § 2254 petition.
the third factor, the record reflects that Petitioner was
warned that the Court would dismiss this case if he failed to
comply with the Court's order [Doc. 2 p. 1].
as to the fourth factor, the Court finds that alternative
sanctions would not be effective. Petitioner was a prisoner
at the time he filed his petition nearly three years ago and
he has not pursued this action since doing so.
reasons set forth above, the Court concludes that the
relevant factors weigh in favor of dismissal of
Petitioner's action without prejudice pursuant to Rule
41(b). Accordingly, Petitioner will be
ASSESSED the filing fee of $5.00 and this
action will be DISMISSED without prejudice
pursuant to Rule 41(b).
custodian of Petitioner's inmate trust account will be
DIRECTED to submit to the Clerk, U.S.
District Court, 900 Georgia Avenue, Chattanooga, Tennessee
37402, as an initial partial payment, whichever is the
greater of: (a) twenty percent (20%) of the average monthly
deposits to Petitioner's inmate trust account; or (b)
twenty percent (20%) of the average monthly balance in his
inmate trust account for the six-month period preceding the
filing of the complaint. 28 U.S.C. § 1915(b) (1) (A) and
(B). Thereafter, the trust account custodian shall submit
twenty percent (20%) of Petitioner's preceding monthly
income (or income credited to his trust account for the
preceding month), but only when such monthly income exceeds
$10.00, until the full filing fee of $5.00 has been paid to
the Clerk's Office. McGore v. Wrigglesworth, 114
F.3d 601, 607 (6th Cir. 1997), overruled on other grounds
by Jones v. Bock, 549 U.S. 199 (2007).
ensure compliance with the fee-collection procedure, the
Clerk will be DIRECTED to mail a copy of
this memorandum opinion and the accompanying order to the
custodian of inmate accounts at the Lexington Federal Medical
Center and to the Commissioner of the Bureau of Prisons to
ensure that the custodian of Plaintiffs' inmate trust
accounts complies with that portion of the Prison Litigation
Reform Act relating to payment of the filing fees. This order
shall be placed in Petitioner's institutional file and
follow him if he is transferred to another correctional
facility. The Clerk will also be DIRECTED to
furnish copies of this memorandum opinion and the
accompanying order to the Court's financial
Court must now decide whether to grant Petitioner a
certificate of appealability (“COA”). A COA
should issue where a petitioner makes a “substantial
showing of a denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). When a district court denies a
habeas petition on a procedural basis without reaching the
underlying claim, a COA should only issue if “jurists
of reason would find it debatable whether the petition states
a valid claim of the denial of a constitutional right and
that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Court is dismissing this petition because Petitioner did not
comply with a Court order, a procedural ground. Reasonable
jurists could not find that this dismissal is debatable or
wrong. Accordingly, a certificate of appealability shall not
issue and, should Petitioner ...