United States District Court, W.D. Tennessee, Western Division
ENRIQUE JERMAINE RICHARDSON, a/k/a SIKANU NIH EL BEY, a/k/a SAKHANU NAHOLO MSTABEH, Plaintiff,
STATE OF TENNESSEE, et al., Defendants.
REPORT AND RECOMMENDATION
PHAM, UNITED STATE MAGISTRATE JUDGE
March 5, 2019, Plaintiff Enrique Jermaine Richardson, a/k/a
Sikanu NIH El Bey, a/k/a Sakhanu Naholo Mstabeh, filed a
pro se complaint and a motion to proceed in
forma pauperis. (ECF Nos. 1 & 2.) Richardson's
motion to proceed in forma pauperis is not
complete and does not provide the court with sufficient
financial information to determine if he is unable to pay the
civil filing fee. The court therefore ordered Richardson to
either submit a properly completed and executed in
forma pauperis application or pay the $400.00 civil
filing fee by April 8, 2019. (ECF No. 6.) The court further
ordered the Clerk of Court to send Richardson both a copy of
that order and a non-prisoner in forma pauperis
affidavit. And the court warned Richardson that failure to
comply in a timely manner would result in a recommendation to
the presiding district judge that this action be dismissed
pursuant to Federal Rules of Civil Procedure 41(b). The
initial mailing was returned undeliverable. (ECF No. 7.) The
docket shows that the order and affidavit were mailed to the
forwarding address on the return envelope on March 15, 2019.
As of April 15, 2019, Richardson has taken no action. The
undersigned thus recommends that Richardson's complaint
be dismissed without prejudice for failure to prosecute.
action may be dismissed if the plaintiff fails to prosecute
or comply with the Federal Rules of Civil Procedure or a
court order. Fed.R.Civ.P. 41(b). A Rule 41(b) dismissal
"operates as an adjudication on the merits."
Id. The authority to dismiss a case under Rule 41(b)
"is available to the district court as a tool to effect
management of its docket and avoidance of unnecessary burdens
on the tax-supported courts and opposing parties."
Knoll v. Am. Tel. & Tel. Co., 176 F.3d 359, 363
(6th Cir. 1999) (citation and internal quotations omitted).
The Sixth Circuit considers four factors in reviewing the
decision of a district court to dismiss a case for failure to
(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) (citing Knoll, 176 F.3d at 363). Based on
these factors, the undersigned submits that dismissal of
Richardson's complaint is appropriate.
Richardson's failure to prosecute appears to be willful;
he has failed to respond to a court order even after the
court resent the order to his forwarding address. Second,
none of the defendants have been prejudiced by
Richardson's failure to prosecute as no service has been
issued and no party has taken any action in this court.
Third, Richardson has been warned that his case could be
dismissed if he failed to comply with the court's orders.
Fourth, while less drastic measures have been considered, the
court finds that, given the recommendation of dismissal
without prejudice, this sanction of dismissal is appropriate
under the circumstances. Courts have held that pro
se litigants must keep the court informed of their
current address and failure to do so warrants dismissal for
failure to prosecute. See Robinson v. Comm'r of Soc.
Sec., No. 11-cv-2195-SHM-tmp, 2017 WL 6539447, at *2
(W.D. Tenn. Dec. 21, 2017); see also White v. City of
Grand Rapids, 34 Fed.Appx. 210, 211 (6th Cir. 2002);
Buck v. U.S. Dept. of Agriculture, Farmers Home
Admin., 960 F.2d 603, 608-09 (6th Cir. 1992);
Harkleroad v. Astrue, No. 4:03-cv-15, 2011 WL
3627161, at *3 (N.D. Ohio Aug. 17, 2011).
these reasons, the undersigned recommends that
Richardson's complaint be dismissed without prejudice for
failure to prosecute. See Fed.R.Civ.P. 41(b);
Wu, 420 F.3d at 643.
FOURTEEN (14) DAYS AFTER BEING SERVED WITH A COPY OF THIS
REPORT AND RECOMMENDED DISPOSITION, ANY PARTY MAY SERVE AND
FILE SPECIFIC WRITTEN OBJECTIONS TO THE PROPOSED FINDINGS AND
RECOMMENDATIONS. ANY PARTY MAY RESPOND TO ANOTHER PARTY'S
OBJECTIONS WITHIN FOURTEEN (14) DAYS AFTER BEING SERVED WITH
A COPY. 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b)(2);
L.R. 72.1(g)(2). FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN
(14) DAYS MAY CONSTITUTE A WAIVER OF OBJECTIONS, EXCEPTIONS,
AND FURTHER APPEAL.
Pursuant to Administrative Order
2013-05 (Apr. 29, 2013), this case has been referred to the
United States magistrate judge for management and for all
pretrial matters for determination and/or ...