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Gilson v. Anderson County Detention Facility

United States District Court, E.D. Tennessee

May 23, 2018

AERON MICHAEL GILSON, Plaintiff,
v.
ANDERSON COUNTY DETENTION FACILITY, Defendant.

          MEMORANDUM OPINION

          THOMAS A. VARLAN CHIEF UNITED STATES DISTRICT JUDGE

         This is a pro se prisoner's complaint for violation of 42 U.S.C. §1983. On April 17, 2018, the Court entered an order providing that Plaintiff would have thirty days to pay the filing fee or to submit the documents necessary for Plaintiff to proceed in forma pauperis [Doc. 3]. More than thirty-three[1] days have passed and Plaintiff has not complied with this order or otherwise communicated with the Court. Accordingly, for the reasons set forth below, this matter will be DISMISSED due to Plaintiff's failure to prosecute and failure to comply with the Court's orders.

         Rule 41(b) of the Federal Rules of Civil Procedure 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, LLC 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). The Court considers 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. 2005); see Reg'l Refuse Sys., Inc. v. Inland Reclamation Co., 842 F.2d 150, 155 (6th Cir. 1988).

         As to the first factor, the Court finds that Plaintiff's failure to respond to or comply with the Court's previous order is due to Plaintiff's willfulness and/or fault. Specifically, it appears that Plaintiff either received the Court's order and decided not to respond thereto, or failed to update his address and/or monitor this action as this Court's Local Rule 83.13 requires.

         As to the second factor, the Court finds that Plaintiff's failure to comply with the Court's order has not prejudiced Defendant.

         As to the third factor, the Court warned Plaintiff that the Court would dismiss the case if Plaintiff did not timely comply with the Court's previous order [Doc. 3 p. 1-2].

         Finally, as to the fourth factor, the Court finds that alternative sanctions would not be effective. Plaintiff was a prisoner who was seeking leave to proceed in forma pauperis in this action and Plaintiff has not pursued this action since filing his motion for leave to proceed in forma pauperis more than ten months ago [Doc. 2].

         For the reasons set forth above, the Court concludes that the relevant factors weigh in favor of dismissal of Plaintiff's action pursuant to Rule 41(b). White v. City of Grand Rapids, No. 01-229234, 34 Fed.Appx. 210, 211, 2002 WL 926998, at *1 (6th Cir. May 7, 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 (6th Cir. 1991). Accordingly, Plaintiff will be ASSESSED the filing fee of $400.00 and this action will be DISMISSED for want of prosecution pursuant to Rule 41(b).

         The custodian of Plaintiff's inmate trust account will be DIRECTED to submit to the Clerk, U.S. District Court, 800 Market Street, Knoxville, Tennessee 37902, twenty percent (20%) of Plaintiff'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 $400.00 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).

         To 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 Sheriff of Anderson County. This order shall be placed in Plaintiff'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 deputy.

         The Court CERTIFIES that any appeal from this action would not be taken in good faith and would be totally frivolous. Fed. R. App. P. 24.

         AN APPROPRIATE ...


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