United States District Court, E.D. Tennessee, Knoxville
Magistrate Judge Susan K. Lee
R. MCDONOUGH UNITED STATES DISTRICT JUDGE.
a pro se prisoner's complaint under 42 U.S.C. §
1983. On February 13, 2019, the Court entered an order
screening the complaint and providing Plaintiff with thirty
days from the date of entry of the order file an amended
complaint [Doc. 5]. The Court also warned Plaintiff that if
he failed to timely comply with that order, the Court would
dismiss this action [Id. at 3]. Plaintiff did not
timely comply with this order or otherwise communicate with
the Court. Accordingly, on March 28, 2019, the Court entered
an order requiring Plaintiff to show good cause as to why he
had not complied with the previous order within fifteen days
and notifying Plaintiff that if he did not timely comply with
that order, the Court would dismiss this action [Doc. 6 p.
1]. On April 8, 2019, the United States Postal Service
returned the Court's March 28, 2019 order to the Court as
undeliverable and the Clerk resent that order to Plaintiff at
the permanent address listed on his complaint [Doc. 7]. More
than eighteen days have now passed since the Clerk resent the
March 28, 2019, order to Plaintiff at his permanent address
and Plaintiff has not complied with that order or otherwise
communicated with the Court. Accordingly, for the reasons set
forth below, this action will be DISMISSED with
prejudice due to Plaintiff's failure to
prosecute and/or comply with the Court's orders.
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). The 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 Reg'l Refuse Sys., Inc. v. Inland
Reclamation Co., 842 F.2d 150, 155 (6th Cir. 1988).
factors weigh clearly in favor of dismissal. As to the first
factor, the Court finds that Plaintiff's failure to
respond to or comply with the Court's previous orders is
due to Plaintiff's willfulness and/or fault.
Specifically, it appears that Plaintiff received the
Court's previous orders but chose not to comply with
them. Accordingly, the first factor weighs in favor of
dismissal. As to the second factor, the Court finds that
Defendants have not been prejudiced by Plaintiff's
failure to comply with the Court's orders. As to the
third factor, the Court warned Plaintiff that it would
dismiss this case if he failed timely comply with the
Court's orders [Doc. 5 p. 3; Doc. 6 p. 1]. Finally, as to
the fourth factor, the Court finds that alternative sanctions
would not be effective. Plaintiff was a prisoner who was
granted leave to proceed in forma pauperis in this
action [Doc. 4], Plaintiff has not pursued this action since
filing his complaint approximately eight months ago, and
Plaintiff is not complying with the Court's orders or
otherwise communicating with the Court.
reasons set forth above, the Court concludes that the
relevant factors weigh in favor of dismissal of
Plaintiff's action 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 Rule 24 of the Federal Rules of Appellate
APPROPRIATE ORDER WILL ENTER.
 Service of the Court's previous
order was made by mail pursuant to Rule 5(b)(2)(C) of the
Federal Rules of Civil Procedure. Accordingly, Plaintiff had
an additional three days to comply with the order.
Fed.R.Civ.P. 6(d). The Court also notes that, as Plaintiff is
no longer incarcerated [Doc. 6], the Clerk has mailed ...