United States District Court, E.D. Tennessee, Knoxville
prisoner, Aaron Tate (“Plaintiff”) initiated this
action when he filed a complaint on February 16, 2016
alleging constitutional violations pursuant to 28 U.S.C.
§ 1983 [Doc. 1]. On April 24, 2017, all remaining
defendants, Jeff Coffey, Derrick Daugherty, and Shawn
Phillips (collectively “Defendants”) filed a
joint motion to dismiss for lack of prosecution based on
Plaintiff's failure to update his address with
Defendants' counsel or the Court [Doc. 34]. However, on
October 6, 2017, over five months after Defendants filed
their motion to dismiss, Plaintiff notified the Court, via
telephone, that he was released from jail and provided the
Court with an updated address.
beginning of this lawsuit, Plaintiff was forewarned that if
he failed to “promptly notify the Court of any address
change . . . within fourteen (14) days of any such
change” this case will be dismissed for failure to
prosecute” [Doc. 3 p. 8]. Based on Plaintiff's
obvious failure to comply with the time restraints set forth
by this Court, Plaintiff was ordered to show cause within
fourteen days as to why this case should not be dismissed for
failure to follow the order of this Court [Doc. 37].
Plaintiff was advised that “failure to comply with the
terms of this Order will result in dismissal of his
than fourteen days have passed and Plaintiff has not filed
any response to the Court's order to show cause. 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 respond or comply is, in fact, the fault of the
Plaintiff. Notably, the Order sent to Plaintiff's address
on file 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, either way,
the first factor weighs in favor of dismissal.
second factor also weighs in favor of dismissal. By failing
to respond to the Court's show cause order, this case is
delayed by the inactions of Plaintiff.
third factor clearly weighs in favor of dismissal, because
the record reflects that the Court warned Plaintiff multiple
times that the Court would dismiss this case if he failed to
comply with the Court's orders [Doc. 3 p. 8, Doc. 37 p.
the Court finds that alternative sanctions would not be
effective. This Court previously granted Plaintiff's
motion for leave to proceed in forma pauperis based
on a review of his prisoner trust fund account statement
[Doc. 3]. The financial data provided indicates that
Plaintiff does not have the ability to pay a monetary fine.
Nor does the Court 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 Plaintiff's compliance. The Court thus
concludes that, in total, the factors weigh in favor of
dismissal of Plaintiff's action with prejudice pursuant
to Rule 41(b).
reasons discussed herein, this action will be
DISMISSED WITH PREJUDICE pursuant to Rule