United States District Court, M.D. Tennessee, Nashville Division
A. TRAUGER UNITED STATES DISTRICT JUDGE.
Hughes, a state prisoner, filed a pro se petition
for the writ of habeas corpus under 28 U.S.C. § 2254.
(Doc. No. 1.) On March 20, 2019, the court entered an order
granting the petitioner 28 days to either pay the $5.00 fee
required to file a habeas corpus petition or submit an
application to proceed in this court without prepaying the
fee (“Deficiency Order”). (Doc. No. 3.) At that
time, the court warned the petitioner that this action would
be dismissed if he failed to comply with these instructions.
the deadline expired,  the petitioner filed a motion for an
extension of time to pay the filing fee. (Doc. No. 5.) The
petitioner stated that he was in segregation and, in a letter
attached to the motion, stated that the Clerk of Court would
“be receiving the five dollar required fee . . . from
my family members very soon.” (Doc. No. 5 at 1; Doc.
No. 5-1 at 1.) The court granted the petitioner another 28
days to pay the fee (Doc. No. 8), resulting in a new deadline
of May 23.
letter received on May 29 and dated May 16, the petitioner
stated that his “sister has been now notified to send
into this court clerk's office the fee of (5$).”
(Doc. No. 9.) He did not, however, ask for another extension
of time to pay the fee.
receiving an extension of time to pay the fee and twice
assuring the court that a family member would be paying the
fee on his behalf, the petitioner has not resolved the matter
of the fee in this action. Thus, the petitioner has not
complied with the court's instructions within the
Deficiency Order. Indeed, it has now been over one month
since the extended deadline to pay the fee expired. In these
circumstances, the court finds it appropriate to dismiss this
action without prejudice for failure to prosecute.
41(b) of the Federal Rules of Civil Procedure permits a
district court to dismiss a habeas corpus action for failure
to prosecute. Ross v. Cauley, No. 18-6114, 2019 WL
1805019, at *2 (6th Cir. Mar. 29, 2019). The court considers
four factors in determining whether an action should be
dismissed under Rule 41(b): “(1) whether the
party's failure is due to willfulness, bad faith, or
fault; (2) whether the opposing party was prejudiced by the
dismissed party's failure to cooperate; (3) whether the
dismissed party was given a warning that failure to cooperate
could lead to dismissal; and (4) whether less drastic
measures were considered before dismissal.”
Id. (citing Schafer v. City of Defiance Police
Dep't, 529 F.2d 731, 737 (6th Cir. 2008)). Here,
three of these factors strongly support dismissal without
the court finds “bad faith, willfulness, or fault when
the record clearly evinces a party's ‘delay or
contumacious conduct.'” Saulsberry v.
Holloway, 622 Fed.Appx. 542, 545 (6th Cir. 2012)
(quoting Carpenter v. City of Flint, 723 F.3d 700,
704 (6th Cir. 2013)). Conduct is “contumacious”
if it “display[s] either an intent to thwart judicial
proceedings or a reckless disregard for the effect of [the
party's] conduct on those proceedings.”
Carpenter, 723 F.3d at 706 (citations and internal
quotation marks omitted). Here, since being ordered to pay
the fee, the petitioner has submitted five filings other than
his motion for an extension of time. (Doc. Nos. 6, 7, 9, 10,
and 11.) These filing include about 10 pages of letters,
declarations, or additional briefing (Doc. No. 6 at 1; Doc.
No. 7; Doc. No. 9; Doc. No. 10 at 1-6; Doc. No. 11), and over
200 pages of assorted attachments (Doc. No. 6 at 2-24; Doc.
No. 10 at 7-203). Based on this record, and the
petitioner's two fruitless assurances that the matter of
the fee would soon be resolved, the court concludes that the
petitioner has displayed, at least, a “reckless
disregard for the effect of [his] conduct on th[ese]
proceedings.” Carpenter, 723 F.3d at 706. The
first factor therefore weighs in favor of dismissal.
the second factor, the respondent has not been prejudiced by
the petitioner's conduct because, due to the
petitioner's failure to resolve the matter of the filing
fee, the respondent has not yet been ordered to respond. But
the third factor, “which is a ‘key
consideration' in the analysis, ” Schafer,
529 F.2d at 740 (quoting Stough v. Mayville Cmty.
Sch., 138 F.3d 612, 615 (6th Cir. 1998)), weighs heavily
in favor of dismissal. “When a party receives a
targeted warning that its failure to prosecute will lead to
dismissal, but nonetheless persists in its noncompliance,
this factor favors affirming the resulting dismissal.”
Saulsberry, 622 Fed.Appx. at 547 (citing Kovacic
v. Tyco Valves & Controls, LP, 433 Fed.Appx. 376,
382 (6th Cir. 2011)). Here, the court provided such a
targeted warning in the Deficiency Order. (Doc. No. 3 at 1.)
Finally, the fourth factor supports this outcome as well,
because dismissal without prejudice is a relatively lenient
measure compared to the more drastic sanction of dismissal
with prejudice. Carpenter, 723 F.3d at 709 (citing
Mulbah v. Detroit Bd. of Educ., 261 F.3d 586, 593
(6th Cir. 2001)).
these reasons, this action is DISMISSED WITHOUT
PREJUDICE for failure to prosecute and failure to
comply with the court's previous order. Fed.R.Civ.P.
the final order denying all relief in this case. The Clerk
SHALL enter judgment. Fed.R.Civ.P. 58(b).
 The 28-day fee-payment period began on
March 21, the day after the court entered the Deficiency
Order. Fed R. Civ. P. 6(a)(1)(A). Three days are added to the
period because the petitioner was served by mail.
Fed.R.Civ.P. 6(d). The thirty-first day of the period was
Sunday, April 21, so the period continued to run until
Monday, April 22. Fed.R.Civ.P. 6(a)(1)(C). The
petitioner's motion is deemed filed when he gave it to
prison officials for mailing. See Brand v. Motley,
526 F.3d 921, 925 (6th Cir. 2008). The motion is dated April
16, so the ...