United States District Court, E.D. Tennessee
A. VARLAN CHIEF UNITED STATES DISTRICT JUDGE
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 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.
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
(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).
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.
the second factor, the Court finds that Plaintiff's
failure to comply with the Court's order has not
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].
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].
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).
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).
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.
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.