United States District Court, E.D. Tennessee, Winchester
a pro se prisoner's complaint filed under 42 U.S.C.
§ 1983. For the reasons set forth below, this action
will be DISMISSED pursuant to Rule 41(b).
5, 2018, the Clerk sent Plaintiff a notice of change of
address providing that that “[i]t is the duty of any
party not represented by counsel 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” and that
failure to provide such a notice within fourteen days of the
change of address may result in dismissal of the case [Doc.
3]. On July 13, 2018, the Court received a letter from
Plaintiff indicating that he had no change of address at that
time and would notify the Clerk if he did [Doc. 4 p. 1]. On
January 14, 2019, however, the Court entered an order
granting Plaintiff's motion for leave to proceed in
forma pauperis [Doc. 5], which the United States Postal
Service (“USPS”) returned as undeliverable [Doc.
on June 24, 2019, the Court entered a memorandum and order
screening the complaint and providing that Plaintiff had
twenty days from the date of entry thereof to return
completed service packets for the remaining Defendants in
this case [Doc.7]. Therein, the Court noted that the USPS had
returned the mail containing its previous order as
undeliverable, updated Plaintiff's address to an address
that the Court identified through a search of the Tennessee
Department of Correction's Felony Offender Information
database, and warned Plaintiff that if he failed to timely
comply with that order, the Court would dismiss this action
[Id. at 1 and 4]. More than thirty-five days have
passed since entry of this order, however, and Plaintiff has
not complied therewith or otherwise communicated with the
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
examines 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).
the first factor, the Court finds that Plaintiff's
failure to comply with the Court's order or file an
updated address with the Court is due to Plaintiff's
willfulness and/or fault. Specifically, it is apparent that
Plaintiff was aware of the requirement that he notify the
Court regarding a change of address, but chose not to comply
therewith. Further, while it appears that Plaintiff received
the Court's June 24, 2019, order that the Court sent to
an updated address that the Court identified for Plaintiff
through the Tennessee Department of Correction's Felony
Offender Information database, he has not complied therewith
or otherwise contacted the Court. As such, the first factor
weighs in favor of dismissal.
the second factor, the Court finds that Plaintiffs failure to
comply with the Court's order has not prejudiced
the third factor, both the Clerk and the Court warned
Plaintiff that the Court would dismiss this case if he failed
to update his address in a timely manner and/or failed to
comply with the Court's orders [Doc. 3 p. 1; Doc. 5 p. 2;
Doc. 7 p. 4].
as to the fourth factor, the Court finds that alternative
sanctions would not be effective. Plaintiff was a prisoner
proceeding in forma pauperis in this case [Doc. 7]
and Plaintiff is not complying with Court orders or
communicating with the Court.
reasons set forth above, the Court concludes that the
relevant factors weigh in favor of dismissal of this action
pursuant to Rule 41(b).
Court CERTIFIES that any appeal from this
order would ...