United States District Court, E.D. Tennessee
JOE H. ANGUS, Plaintiff,
TENNESSEE DEPARTMENT OF CORRECTIONS, DERRICK SCHOFIELD, JASON WOODALL, PATRICK SPECK, KATHY HARGIS, TOM APPLEGATE, KATY CAMPBELL, PATRICIA ALDRIDGE, JOHN DOE, and JANE DOE, Defendants.
A. VARLAN CHIEF UNITED STATES DISTRICT JUDGE
Angus (“Plaintiff”) initiated this action when he
filed a Complaint on September 13, 2016, alleging
constitutional violations pursuant to 28 U.S.C. § 1983
[Doc. 2], along with a motion for leave to proceed in
forma pauperis [Doc. 1]. On September 29, 2017, the
Court screened Plaintiff's Complaint to determine
whether, inter alia, the pleading failed to state a
claim which would entitle Plaintiff to relief under §
1983 [Doc. 7]. The Court determined that “process shall
issue to each Defendant on Plaintiff's deliberate
indifference claims” [Id.]. Additionally, the
Court directed the Clerk to send Plaintiff service packets (a
blank summons and USM 285 form) for Defendants and ordered
Plaintiff to complete the service packets and return them to
the Clerk's Office within twenty days of the date of the
order [Id.]. Plaintiff was forewarned that failure
to return the completed service packets within the time
required could jeopardize his prosecution of this action
[Id.]. The order and service packets were sent to
Plaintiff at his last known address. However, Plaintiff
failed to respond in any way to the order and has not
returned the service packets to the Court as directed.
the Court ordered Plaintiff to show cause within fourteen
days explaining why his case should not be dismissed without
prejudice for failure to prosecute and/or failure to follow
the order of this Court [Doc. 8]. The Court notified
Plaintiff that failure to comply with the terms of this order
will result in dismissal of his case [Id.]. More
than fourteen days have passed and Plaintiff has not filed
any response to the Court's order to show cause.
Rule of Civil Procedure 41(b) gives the 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). 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 analyzing 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 finds that Plaintiff's
failure to respond or comply is the fault of the Plaintiff.
Notably, the order sent to Plaintiff's address on file
was not returned to the Court. Plaintiff's failure to
respond to the Court's order may be willful (if he
received the order and declined to respond), or it may be
negligent (if he did not receive the order because he failed
to update his address and/or monitor this action). Pursuant
to Local Rule 83.13, it is the duty of the pro se party to
monitor the progress of the case and to prosecute or defend
the action diligently. See E.D. Tenn. L.R. 83.13.
Accordingly, in either case, the first factor weighs in favor
second factor, however, weighs against dismissal; since
Defendants have not yet been served, they have not been
prejudiced by Plaintiff's inactions.
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 of the
possible consequences of such a failure [Doc. 7 p. 8; Doc. 8
the Court finds that alternative sanctions would not be
effective. Plaintiff has 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 does not believe that a 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
Plaintiff's 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).
reasons discussed herein, this action is hereby
DISMISSED WITH PREJUDICE pursuant to Rule