Cruse v. Burchett et al

Filing 20

MEMORANDUM OPINION & ORDER: 1. Cruse's Complaint DE 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, including the motion for extension of time filed by Dft Burchett DE 19 are DENIED AS MOOT. 3. All ddls and scheduled proceedings are CONTINUED GENERALLY. 4. The Court will enter an appropriate Judgment. 5. This matter is STRICKEN from the Court's docket. Signed by Judge Henry R. Wilhoit, Jr on 8/9/18.(KSS)cc: COR, Cruse (via US Mail)

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

WENDELL LEONARD CRUSE,
Plaintiff,
v.
JOSEPH BURCHETT, ET AL.,
Defendants.

)
)
)
)
)
)
)
)
)
)

Eastern District of Kentuckv

FILED

AUG 0 9 2018
AT ASHLAND

ROBERT R. CARR
CLERK U.S. DISTRICT COURT

Civil No. 18-25-HRW

MEMORANDUM OPINION
AND ORDER

*** *** *** ***
This matter is before the Court due to the failure of Plaintiff, Wendell Leonard
Cruse, to comply with prior Court orders. By Order dated July 5, 2018, the Court
conducted an initial screening of Cruse's complaint, dismissing some of the claims
and defendants named in his complaint but directing the United States Marshals
Service to serve Defendants Joseph Burchett and Deputy Jailer King with summons.
[D.E. No. 9]
A prior Court Order expressly advised Cruse 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. 7 at p. 3]; see

also LR 5.2(d). However, the copy of the Court's July 5, 2018 Order that was mailed

1

•

to Cruse at his address of record was returned as undeliverable by the Postal Service
and was marked "Return to Sender - No Longer In This Facility." [D.E. No. 12]
Accordingly, on July 16, 2018, the Court entered an Order which again
advised Cruse of his obligation to advise the Clerk's Office of any change in his
mailing address and ordered Cruse to provide the Clerk of the Court with an updated
mailing address within twenty-one (21) days. [D.E. No. 13] Cruse 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 Cruse.
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. 4l(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
2

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)).

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. Cal/wood, 844 F.2d 1254,
1256 (6th Cir. 1988)). Here, Cruse 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 Cruse makes the imposition
of lesser sanctions, such as monetary or other penalties, difficult or impracticable.
Thus, evaluating all of these factors, the Court concludes that dismissal of
Cruse'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:

3

1.

Cruse's Complaint [D.E. No. I] 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, including the motion for

extension of time to file an answer filed by Defendant Joseph Burchett [D.E. No. 19]
are DENIED AS MOOT.
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.

This~ of August, 2018.

.
{i)
~-~

~..://

4

Signed By:

Henry R. Wilhoit. Jr.
United States District Judge