United States District Court, M.D. Tennessee, Columbia Division
Jaston A. Oakley, Plaintiff
Andy Cathey, Defendants
HONORABLE William L. Campbell, Judge.
REPORT AND RECOMMENDATION
BROWN, United States Magistrate Judge.
reasons stated below, the Magistrate Judge recommends that
this case be dismissed without prejudice for failure to
prosecute and to obey court orders, and that any appeal from
the dismissal not be certified as taken in good faith.
Plaintiff filed his case in forma pauperis on June
6, 2019 (Docket Entry 1). After a review by Judge Campbell
the Plaintiff was permitted to proceed in forma
pauperis on his claims of a Fourteenth Amendment Equal
Protection claim under Section 1983 against Mr. Cathey in his
individual capacity. All other claims were dismissed. The
order specifically stated “He is also forewarned that
his prosecution of this action will be jeopardized should he
fail to keep the clerk's office informed of his current
address.” (Docket Entry 4).
Plaintiff returned service packets and service of process was
directed on the Defendants and returned on Sept. 17, 2019.
The plaintiff used the Maury Count Jail as his current
address on the summons. (DE 7) The defendant filed an
appearance and answered the complaint on Sept 24, 2019. (DE 9
and 10). Next the Defendant notified the court that mail sent
to the plaintiff at the Maury County jail which was the last
address provided by the plaintiff was returned as undelivered
with the notation: "Return to Sender, Attempted-Not
known, Unable to Forward." (DE 11). Counsel for the
defendant also advised the upon checking with the jail she
was advised the plaintiff had been released from custody and
had not provided a forwarding address.
cause order was entered for the plaintiff to appear for a
scheduling hearing on October 23, 2019 and the plaintiff was
again warned of the need to have a current address on file.
(DE 12). The plaintiff did not appear at the hearing and he
has not provided the court with a current address. Counsel
again advised the court that the Plaintiff had been releases
with no forwarding address on file. Additionally the
Court's order to show cause was returned with the
notation “released” (DE 14).
dismissal with or without prejudice is a drastic remedy and
before the court contemplates dismissing an action under Rule
41(b) the Court must specifically consider:
(1) whether the party's failure to cooperate is due to
willfulness, bad faith, or fault;
(2) whether the adversary was prejudiced by the dilatory
conduct of the party;
(3) whether the dismissed party was warned that failure to
cooperate could lead to dismissal; and (4) where the less
drastic sanctions were imposed or considered before dismissal
Tetro v. Elliott Popham Pontiac, 173 F.3d 988 (6th
Plaintiff was warned at the onset of the case that failure to
keep a current could jeopardize his prosecution of the
matter. In this case the Plaintiff has failed to provide the
Court with a current address. His failure to do so appears
willful. Plaintiff ...