United States District Court, E.D. Tennessee
prisoner Daniel Harrell (“Plaintiff”) filed this
Complaint arising under 42 U.S.C. § 1983 [Doc. 2] on
September 25, 2015. On April 25, 2018, the Court screened the
Complaint pursuant to the Prison Litigation Reform Act
(“PLRA”), 28 U.S.C. §§ 1915(e)(2)(B)
and 1915(A) [Doc. 6]. The Court concluded that
Plaintiff's Eighth Amendment excessive force claim
against Michael Taylor in his individual capacity would
proceed, but it dismissed the remainder of Plaintiff's
claims and the remaining defendants [Id.]. The Court
“ORDERED [Plaintiff] to complete the service packet
[for Taylor] and return it to the Clerk's office within
thirty (30) days from the date of the entry of this Order,
” and put Plaintiff “ON NOTICE that failure to
return the completed service packets within this time period
may result in the dismissal of this action for failure to
prosecute and/or failure to comply with a court order.”
[Id. at 13-14 (citing Fed.R.Civ.P. 41(b))].
Order and service packet were mailed to Plaintiff at his
current location of incarceration.More than thirty days have
now passed, and Plaintiff has not returned a service packet
for Taylor or responded to the Court's Order in any other
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 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 Regional Refuse Sys., Inc. v. Inland
Reclamation Co., 842 F.2d 150, 155 (6th Cir. 1988).
the first factor, the Court can discern no reason for
Plaintiff's failure other than willfulness or fault.
Plaintiff has demonstrated an ability to file documents with
the Court in the past, and there is no indication that
Plaintiff did not receive the Court's Order. The Court is
left to conclude that Plaintiff received the Order and chose
not to comply with its terms. Accordingly, this factor weighs
in favor of dismissal. The second factor, however, weighs
against dismissal: since the Defendant has not yet been
served or made to appear, he has not been prejudiced by any
delay. By contrast, the third factor clearly weighs in favor
of dismissal, as Plaintiff has failed to comply with the
Court's Order, despite being expressly warned that such a
failure would result in dismissal. Finally, the Court finds
that alternative sanctions would not be effective. Plaintiff
is proceeding in forma pauperis; therefore, the
Court has no indication that Plaintiff has the ability to pay
a monetary fine. The Court does not believe that dismissal
without prejudice would be an effective sanction to
promote Plaintiff s respect for this Court's deadlines
and orders, given that the threat of dismissal with
prejudice was not effective in compelling Plaintiffs
compliance. 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 is hereby DISMISSED WITH PREJUDICE pursuant to
Rule 41(b). 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. Accordingly,
should Plaintiff file a notice of appeal, he is DENIED leave
to appeal in forma pauperis. See 28 U.S.C. §
1915(a)(3); Fed. R. App. P. 24.
APPROPRIATE ORDER WILL ENTER.
 The Court notes that it conducted
independent research regarding Plaintiff's current place
of incarceration and took judicial notice that Plaintiff is
currently housed at Riverbend Maximum Security Institution,
not Bledsoe County Correctional Complex, which was the last
address provided to the Court by Plaintiff [Doc. 6 at 1-2].
The Court thus took additional steps to ensure that Plaintiff
received the Order and service packet, despite
Plaintiff's failure to comply with his ...