United States District Court, E.D. Tennessee, Knoxville
C. Poplin Magistrate Judge
R. MCDONOUGH UNITED STATES DISTRICT JUDGE
filed a complaint under 42 U.S.C. § 1983 in this case on
February 8, 2017 [Doc. 1]. On October 17, 2017, the Court
entered a Memorandum and Order, screening the complaint to
determine whether, inter alia, the pleading failed
to state a claim which would entitle Plaintiff to relief
under § 1983 [Doc. 16]. The Court allowed
Plaintiff's claims to proceed against Defendant Garber in
her individual capacity [Id. at 10-11].
December 6, 2017, after the Clerk of Court entered default
against Defendant Garber [Doc. 18], Plaintiff filed a motion
for default judgment [Doc. 19]. However, on December 12,
2017, the Court denied Plaintiff's motion without
prejudice to Plaintiff refiling at a later date, finding that
“it is apparent from the Court's docket that
Defendant Garber was not served with the Court's previous
Order screening Plaintiff's complaint” [Doc. 20 p.
1]. The Court directed the Clerk to send a copy of the
previous Order to Defendant Garber, and ordered Defendant
Garber to respond to Plaintiff's complaint within
twenty-one days from the date of service [Id. at 2].
Defendant Garber failed to respond, on April 30, 2018, the
Court entered an Order directing Plaintiff to show cause
within thirty days as to why his claims against Defendant
Garber should not be dismissed pursuant to Federal Rule of
Civil Procedure 41(b) for the failure to prosecute [Doc. 21
p. 2]. Plaintiff was instructed that if he failed to timely
file a response showing good cause, his claims against
Defendant Garber would be dismissed [Id.].
than thirty days have passed, and Plaintiff has failed to
request that the Clerk enter default 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 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. 16 p. 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. Although
Defendant Garber has been served, she has also not responded
to the Court. 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