United States District Court, E.D. Tennessee, Greeneville
RONNIE GREER, UNITED STATES DISTRICT JUDGE.
pro se prisoner's civil rights action under 42 U.S.C.
§ 1983 was filed on August 24, 2015 [Doc. 1]. On August
27, 2015, the Court entered a deficiency order advising
Plaintiff that he had failed to submit a certified copy of
his inmate trust account for the previous six-month period to
support his application to proceed in forma
pauperis, in violation of 28 U.S.C. § 1915(a)(2)
[Doc. 4]. The Court allowed Plaintiff thirty days to file the
necessary inmate trust account [Id.]. However,
Plaintiff responded to the deficiency order on December 11,
2015, stating for the first time, that he “tried to get
the form” but was told by the “Carter County
Detention Center . . . [that] they didn't have it,
” and that the Carter County Detention Center officials
are “refusing to give me the proof I need.” [Doc.
6 at 1].
October 30, 2017, the Court entered an Order directing
Plaintiff to show the deficiency order to the Carter County
Detention Center officials, and directed jail officials to
“ensure that the custodian of Plaintiff's inmate
trust account complies with the order” [Doc. 7 at 2].
After Plaintiff failed to respond, the Court ordered
Plaintiff on March 8, 2018, to show cause as to why his case
should not be dismissed due to lack of prosecution [Doc. 8].
McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997),
overruled on other grounds by Jones v. Bock, 549
U.S. 199 (2007), the Sixth Circuit instructed that inmates
are not to be penalized due to the non-cooperation of prison
officials, and that “a case may not be dismissed when
the payment of an assessment has been delayed by prison
officials.” Id. at 607-08. Therefore, on April
4, 2018, the Court granted Plaintiff's motion to proceed
in forma pauperis, and screened the the complaint to
determine whether, inter alia, the pleading failed
to state a claim which would entitle Plaintiff to relief
under § 1983 [Doc. 9]. The Court found that
“[w]hile Plaintiff's complaint, as stated, does not
state a claim upon which relief may be granted as filed
against the Defendants, some of Plaintiff's allegations
could state a claim, if amended” [Id. at 8].
Thus, the Court ordered Plaintiff to file an amended
complaint within twenty-one (21) days of the entry of the
Court's Order [Id.].
than twenty-one days have passed, and Plaintiff has failed to
amend his complaint or otherwise respond 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, 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.”).
Court examines 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.
the first factor, the Court finds that Plaintiff's
failure to respond or comply can be attributed to his own
willfulness or fault. Plaintiff failed to file an amended
complaint, despite being instructed by the Court to do so.
Pursuant to Local Rule 83.13, it is the duty of a pro se
party to promptly notify the Clerk and the other parties to
the proceedings of any change in his or her address, to
monitor the progress of the 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 the
Defendants have not been served, they have not been
prejudiced by the delay. However, the third factor clearly
weighs in favor of dismissal, as Plaintiff has failed to
comply with several of 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. Plaintiff filed a motion for leave to
proceed in forma pauperis; therefore, the Court has
no indication that Plaintiff has the ability to pay a
monetary fine. Additionally, the Court has provided Plaintiff
with several opportunities to respond, in order to avoid
dismissal. 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).
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
Plaintiff 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.