Burnett v. Boyd County Detention Center

Filing 17

MEMORANDUM OPINION & ORDER, 1) Burnett's Complaint 1 is DISMISSED WITHOUT PREJUDICE for failure to prosecute and for failure to comply with an Order of the Court 2) all pending motions or requests for relief are DENIED AS MOOT 3) all ddls and scheduled proceedings are CONTINUED GENERALLY 4) the Court will enter judgment 5) matter is STRICKEN from Court's docket 6) Clerk forward a copy of this Order by certified mail to Dr. Tom Johnson and Nurse Kristen Gillium at BCDC 209 28th Street, Catlettsburg, KY 41129. Signed by Judge Henry R. Wilhoit, Jr on 5/10/18.(SMT)cc: COR, Burnett via USMail, dfts Johnson and Gillium via Certified Mail

Eastern District of Kentuckv

fll,ED

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION at ASHLAND

MAY 10 2018
AT ASHLAND
ROBERT R. CARR
~.:LERK

L.D. BURNETT,

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Plaintiff,
v.
TOM JOHNSON, ET AL.,
Defendants.

U.S. !)!STRICT COURT

Civil No. 0:17-045-HRW

MEMORANDUM OPINION
AND ORDER

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This matter is before the Court due to the failure of Plaintiff, L.D. Burnett, to
comply with prior Court orders.

By Order dated March 28, 2018, the Court

conducted an initial screening of the Complaint filed by Burnett and directed the
United States Marshals Service to serve the Complaint upon Defendants Tom
Johnson and Kristen Gillium. [D.E. No. 11]. A prior Court Order expressly advised
Burnett that he must "[i]mmediately advise the Clerk's Office of any change in his
or her current mailing address. Failure to do so may result in dismissal of this
case." [D.E. No. 10 at p. 3]; see also LR 5.2(d). However, the Court's March 28,
2018 Order that was mailed to Burnett at his address of record was returned as
undeliverable by the Postal Service. [D.E. No. 14].
Accordingly, on April 10, 2018, the Court entered an Order which again
advised Burnett of his obligation to advise the Clerk's Office of any change in his

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mailing address and ordered Burnett to provide the Clerk of the Court with an
updated mailing address within twenty-one (21) days. [D.E. No. 15]. Burnett was
also warned that this case would be dismissed without prejudice ifhe failed to do so.
[Id.]. This deadline has now come and gone with no response from Burnett. In fact,

the copy of the Court's April 10, 2018 Order that was mailed to Burnett was also
returned as undeliverable by the Postal Service. [D.E. No. 16].
The authority of a federal trial court to dismiss a plaintiffs action for failure
to prosecute "is necessary in order to prevent undue delays in the disposition of
pending cases and to avoid congestion in the calendars of the District Courts." Link
v. Wabash Rwy. Co., 370 U.S. 626, 629-630 (1962). See also Carter v. City of
Memphis, Tenn., 636 F.2d 159, 161 (6th Cir. 1980) ("It is clear that the district court

does have the power under [Fed. R. Civ. P. 41(b)] to enter a sua sponte order of
dismissal.").
In determining whether to dismiss a case for failure to prosecute, the Sixth
Circuit has directed courts to consider:
(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) (quoting Knoll v. American
Tel. & Tel. Co., 176 F.3d 359, 363 (6th Cir. 1999)).

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With respect to the first and third factors, a court may consider a party's failure
to act in the face of a clear prior warning from the court that the case would be
dismissed as an indication of willful noncompliance. Lovejoy v. Owens, 1994 WL
91814, at *2 (6th Cir. March 21, 1994) (citing Harris v. Callwood, 844 F.2d 1254,
1256 (6th Cir. 1988)). Here, Burnett failed to comply with the Court's Order
directing him to provide the Clerk's Office with a current address, despite the
Court's clear warning that his failure to do so would result in dismissal of the case.
With respect to the fourth factor, the inability to communicate with Burnett makes
the imposition of lesser sanctions, such as monetary or other penalties, difficult or
impracti cab 1
e.
Thus, evaluating all of these factors, the Court concludes that dismissal of
Burnett's complaint, without prejudice, is warranted. Jourdan v. Jabe, 951F.2d108,
110 (6th Cir. 1991) (a pro se litigant is not afforded special consideration for failure
to follow readily comprehended court orders).
Accordingly, it is hereby ORDERED as follows:
1.

Burnett's Complaint [D.E. No. l] is DISMISSED WITHOUT

PREJUDICE for failure to prosecute and for failure to comply with an Order of the

Court.
2.

All pending motions or requests for relief are DENIED AS MOOT;

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3.

All

deadlines

and

scheduled proceedings

are

CONTINUED

GENERALLY;

4.

The Court will enter an appropriate Judgment.

5.

This matter is STRICKEN from the Court's docket.

6.

The Clerk of the Court shall forward a copy of this Order by certified

mail to Defendants Dr. Tom Johnson and Nurse Kristen Gillium at the Boyd County
Detention Center, 209 28th Street, Catlettsburg, Kentucky 41129.
ThisLa1Jay of May, 2018.
Signed By:
Henry R. Wilhoit, Jr;

United Stat•• District Judge

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