United States District Court, E.D. Tennessee, Greeneville
RONNIE GREER UNITED STATES DISTRICT JUDGE.
a pro se prisoner's complaint alleging civil rights
violations under 42 U.S.C. § 1983. Plaintiff filed a
complaint under 42 U.S.C. § 1983 on April 20, 2015 [Doc.
1]. On March 21, 2018, the Court screened Plaintiff's
amended complaint, and allowed Plaintiff's Eighth
Amendment excessive force claims against Defendants Crosby,
Copas, and Kickliter, and Plaintiff's deliberate
indifference claim under the Eighth Amendment against
Defendant Smith to proceed [Doc. 8]. The Court ordered
Plaintiff to complete a service packet for these Defendants
and return it to the Clerk's office within twenty (20)
days of the date of the Order [Id. at 19]. Plaintiff
was forewarned that failure to return the completed service
packet within the time required could jeopardize his
prosecution of this action [Id.]. The Court's
screening Order sent to Plaintiff was returned as
undeliverable [Doc. 9].
Plaintiff failed to return the service packets, on May 2,
2018, the Court ordered Plaintiff to show cause within
fifteen (15) days of entry as to why his case should not be
dismissed for failure to comply with the Court's orders
and for want of prosecution [Doc. 10]. Additionally, the show
cause Order sent to Plaintiff was also returned as
undeliverable [Doc. 11].
than fifteen days have passed, and Plaintiff has failed to
return the service packets 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.”). 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 Plaintiff's
failure to respond or comply can be attributed to his own
willfulness or fault. Plaintiff failed to return the service
packets or respond to the Court's previous show cause
order, 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. It is clear
that Plaintiff has failed to provide the Court with notice of
his correct address. Without his correct and current address,
the Court cannot communicate with Plaintiff regarding his
case. The Court previously ordered Plaintiff to inform the
Court of any address changes immediately, and warned
Plaintiff that failure to provide a correct address within
fourteen days may result in the dismissal of this action
[Doc. 8 p. 19]. The failure of a pro se party to timely
respond to an order or pleading addressed to the last address
provided to the Clerk may result in dismissal of the case or
other appropriate action. E.D. Tenn. L.R. 83.13. Accordingly,
the Court finds that the first factor weighs in favor of
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 the Court's Order, 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. 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.