United States District Court, E.D. Tennessee, Greeneville
GEORGE M. COOK, Plaintiff,
SOUTHERN HEALTH PARTNERS and FRANCHESKA SHOWN, Defendants.
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
civil rights complaint under 42 U.S.C. § 1983 on October
11, 2017 [Doc. 1]. On March 19, 2018, the Court screened
Plaintiff's amended complaint, and allowed
Plaintiff's claims of deliberate indifference under the
Eighth Amendment to proceed against Defendants Southern
Health Partners and Shown [Doc. 7]. 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 10]. Plaintiff
was forewarned that failure to return the completed service
packet within the time required could jeopardize his
prosecution of this action [Id.]. After Plaintiff
failed to return the service packets, on May 11, 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. 8].
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. 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. 7 at 11]. 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 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 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.