United States District Court, E.D. Tennessee, Chattanooga
REPORT AND RECOMMENDATION
K. LEE UNITED STATES MAGISTRATE JUDGE
the Court is a motion and application for leave to proceed in
forma pauperis (âIFPâ) [Doc. 6] filed by pro se prisoner
James Douglas Smith (âPlaintiffâ).
August 8, 2019, the Court issued an Order advising Plaintiff
that he must pay the full filing fee or submit a
complete application to proceed in forma pauperis
(“IFP”). While Plaintiff had previously submitted
an IFP application, it was incomplete in part because he
failed to include the required certified copy of his inmate
trust account for the previous six-month period pursuant to
28 U.S.C. § 1915(s)(2). Plaintiff was given thirty (30)
days to either pay the full filing fee or submit the required
documents, namely the certified copy of his inmate trust
account for the previous six-month period [Doc. 7 at Page ID
was warned in the August 8 Order that his failure to submit
the required documents within 30 days would
result in (1) his being assessed the full amount of the
filing fee because the Court would conclude that Plaintiff is
not a pauper, and (2) his case would be dismissed for want of
prosecution pursuant to Fed.R.Civ.P. 41(b). The Court's
August 8 Order was mailed to Plaintiff at his custodial
address on record at the time the Order was entered. In an
abundance of caution, the August 8 Order was again mailed on
October 31, 2019 to the new custodial address Plaintiff later
provided [Doc. 8].
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). Involuntary
dismissal under Rule 41(b) “operates as an adjudication
on the merits.” Fed.R.Civ.P. 41(b); see Link v.
Wabash R.R. Co., 370 U.S. 626, 629 (1962) (“The
authority of a federal trial court to dismiss a
plaintiff's action with prejudice because of his failure
to prosecute cannot seriously be doubted.”).
Court considers four factors when considering dismissal under
Rule 41(b): “(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 Regional Refuse
Sys., Inc. v. Inland Reclamation Co., 842 F.2d 150, 155
(6th Cir. 1988).
time to comply with the Court's August 8 Order has now
passed. Plaintiff has failed to comply with the Court's
Order to submit the required documents. Because he has
indicated some difficulty complying with the Warden's
requirements for obtaining his documentation [see
Doc. 8], I do not recommend dismissal with prejudice at this
time. However, given that this is one of some 25 complaints
filed by Plaintiff over the course of several years-18 of
which were filed this year alone-all dismissed for the same
or similar reasons, I
RECOMMEND that (1) Plaintiff be
ASSESSED the full filing fee of $400.00; (2)
this action be DISMISSED WITHOUT PREJUDICE
for want of prosecution; (3) the Court
CERTIFY that any appeal from this action
would not be taken in good faith and would be totally
frivolous; and (4) should Plaintiff file a notice of appeal,
he be DENIED leave to appeal in forma
pauperis. See 28 U.S.C. § 1915(a); Fed. R. App.
P. 24; Fed.R.Civ.P. 41(b).
 Any objections to this Report and
Recommendation must be served and filed within 14 days after
service of a copy of this recommended disposition on the
objecting party. Such objections must conform to the
requirements of Rule 72(b) of the Federal Rules of Civil
Procedure. Failure to file objections within the time
specified waives the right to appeal the District Court's
order. Thomas v. Arn,474 U.S. 140, 88 L.Ed.2d 435,
106 S.Ct. 466 (1985). The district court need not provide
de novo review where objections to this report and
recommendation are frivolous, conclusive, or general.
Mira v. Marshall,806 F.2d 636 (6th ...