Brown v. Bishop et al
Filing
14
MEMORANDUM OPINION & ORDER: (1) Plaintiff Tyris A. Brown's 42 USC 1983 2 Complaint is DISMISSED WITHOUT PREJUDICE for want of prosecution. (2) Browns' 3 Motion to Proceed in forma pauperis is DENIED as MOOT. (3) Clerk shall STRIKE THIS MATTER FROM THE ACTIVE DOCKET. Signed by Judge Joseph M. Hood on October 5, 2011. (AWD) cc: Plaintiff via US Mail
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION AT LEXINGTON
TYRIS A. BROWN,
)
)
)
)
)
)
)
)
)
Plaintiff,
V.
RON BISHOP, et al.,
Defendants.
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No. 5:11-CV-00167-JMH
MEMORANDUM OPINION
AND ORDER
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The Court considers the failure of Plaintiff Tyris A. Brown to
prosecute this action by keeping the Court informed of his current
address.
For the reasons set forth below, this proceeding will be
dismissed without prejudice.
BACKGROUND
On May 18, 2011, Brown filed a pro se 42 U.S.C. § 1983 civil
rights Complaint in this proceeding against various employees of
the
Fayette
Kentucky.
Brown was
County
[R. 2].
Detention
Center
(“FCDC”)
in
Lexington,
At that time, Brown was confined in the FCDC.
subsequently transferred, but because he failed to
inform the Clerk of the Court of his new address, Court documents
which had been mailed to him were returned as “Undeliverable.
R. 4.
See
Lacking an address where the Court could contact Brown by
mail, the Court dismissed his § 1983 Complaint without prejudice on
June 23, 2011.
See R. 5 & 6.
The Order of Dismissal and Judgment
were subsequently returned in the mail as “Undeliverable.” [R. 7].
On July 18, 2011, almost a month after the dismissal of
Brown’s Complaint, Brown
provided the Clerk of the Court with his
new mailing address, [R. 8].1
The Clerk then re-mailed copies of
the Order of Dismissal and Judgment to Brown at both of the
addresses he had
provided on July 18, 2011.
See Clerk’s Docket
Notation of July 25, 2011.
After learning that his § 1983 Complaint had been dismissed
for failing to provide a current mailing address, Brown filed a
motion asking the Court to set aside
the dismissal and reinstate
his case, arguing that his thirty-three day delay in notifying the
Court
of
his
circumstances.
new
address
[R. 9].
had
been
reasonable
under
the
On August 8, 2011, the Court entered an
Order granting Brown’s motion to set aside the dismissal of his §
1983 Complaint and directed the Clerk of the Court to reopen this
action.
[R.
10].
The copy of the August 8, 2011, Order mailed to
Brown was not returned as “undeliverable,” so Brown presumably
received it.
After reopening the case, the Court needed to send Brown a
Deficiency Order regarding his motion to proceed in forma pauperis,
1
On July 18, 2011, Brown filed a letter notifying the Clerk of the
Court of his new address, which he identified as being “627 Greenwood
Ave., Clarksville, TN 37040.” [R. 8, p. 1]. Brown indicated that at that
time he was still in custody, stating that he was “. . .on a charge here
in Clarksville, TN and should be getting out on August 1, 2011.” Id.
But on the envelope in which Brown mailed that letter, he listed a
different return address, i.e., “116 Commerce St., Clarksville TN 37040.”
See R. 8, p. 2, and Clerk’s Docket Notation of 7/18/11.
2
[R. 3], but by that time (mid-August 2011) it was unclear whether
Brown was still in custody, had been transferred to another
facility, or had been released from custody.
On August 19, 2011,
the Court entered an Order directing Brown to state, within twenty
days: (1) whether he was in custody or had been released, and (2)
if he remained in custody, to provide the name and address of the
facility in which he was confined.
[R. 11].
The Clerk of the Court mailed copies of the August 19, 2011
Order to both of the addressees which Brown had listed in his July
18, 2011, change-of-address letter.
See Clerk’s Certificate of
mailing to R. 11. The postal service subsequently returned both of
those mailings as “Undeliverable.”
See R. 12 & 13.
Other than his
August 2, 2011, motion to set aside the earlier dismissal, Brown
has neither provided the Clerk of the Court with a current address
nor submitted any other pleadings or letters in this proceeding.
DISCUSSION
Brown’s repeated failure to keep the Clerk of the Court
apprised of his current address warrants dismissal of this action.
“Every plaintiff in federal court has a responsibility to prosecute
his
action
diligently,
and
inform
the
Court
of
any
address
changes.” Cardona v. Forster, No. 95-CV-1939, 1997 WL 599348, at *1
(N.D.N.Y. Sept. 22, 1997).
Section 5.2(d) of the Local Rules2 does
2
Local Rule 5.2(d) provides: “All pro se litigants must provide
written notice of a change of address to the clerk and to the opposing
3
not specify a time-frame in which a party must notify the Court or
opposing parties of a change address, but Brown has again failed to
diligently provide the Clerk of the Court with a current address
where Orders or other official documents could be mailed to him.
Dismissal
without
prejudice
for
failure
to
prosecute
is
permitted when a plaintiff fails to keep a district court advised
of his current address.
FED. R. CIV. P. 41(b); White v. City of
Grand Rapids, 34 F. App’ x 210, 211 (6th Cir. 2002); Smith v.
Tennessee, No. 3:08-0766, 2008 WL 5111111 (M.D. Tenn. December 2,
2008); Lee v. Caruso, No. 1:07-CV-139, 2008 WL 2859212 (W.D. Mich.
July 22, 2008); Weaver v. Estes, No. 4:04-CV-P144-M, 2005 WL
2388284 (W.D. Ky. September 26, 2005).
The Court has attempted to accommodate Brown’s pro se status,
but his repeated failure to provide a current address prevents the
Court from notifying him of any action and constitutes failure to
prosecute.
Further, the complete inability to contact him by mail
precludes any other sanction less drastic than dismissal without
prejudice. White v. Bouchard, No. 05-73718, 2008 WL 2216281, at *5
(E. D. Mich. May 27, 2008).
This action will be dismissed without
prejudice to Brown filing another § 1983 action asserting his
claims, but this action will not be reinstated.
party or the opposing party's counsel. Failure to notify the Clerk of
an address change may result in the dismissal of the litigant's case or
other appropriate sanctions.”
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CONCLUSION
Accordingly, IT IS ORDERED as follows:
(1)
Plaintiff Tyris A. Brown’s 42 U.S.C. § 1983 Complaint,
[R. 2], is DISMISSED WITHOUT PREJUDICE for want of prosecution.
Fed. R. Civ. P. 41(b).
(2)
Brown’s motion to proceed in forma pauperis, [R. 3], is
DENIED as MOOT.
(3)
The Clerk shall STRIKE THIS MATTER FROM THE ACTIVE
DOCKET.
This the 5th day of October, 2011.
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