United States District Court, E.D. Tennessee, Chattanooga
RONNIE GREER UNITED STATES DISTRICT JUDGE.
pro se petition for a writ of habeas corpus under 28 U.S.C.
§ 2254 was filed on August 2, 2017 [Doc. 1]. On August
18, 2017, Respondent 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 several pages of the form
were not included in the petition [Doc. 4]. On November 29,
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 (30) days [Doc. 6 at 2]. The Court
advised Petitioner that failure to comply with the Order
within thirty days could result in dismissal under Federal
Rule of Civil Procedure 41(b) [Id.]. After
Petitioner failed to comply, the Court entered an Order on
March 27, 2018 directing Petitioner to show cause within
fifteen (15) days as to why his case should not be dismissed
for his failure to prosecute [Doc. 7].
than fifteen days have passed, and Petitioner has failed to
submit a completed petition, or otherwise respond to the
Court's Orders. 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 Fed.Appx. 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 monitor the
progress of their 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 Orders,
despite being expressly warned of the possible consequences
of such a failure. Finally, the Court finds that alternative
sanctions would not be effective. Petitioner is currently
incarcerated, and has failed to remain in contact with the
Court. Additionally, despite offering Petitioner another
opportunity to show cause, Petitioner has failed to respond
to the Court's Orders. 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 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”); 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.