McKinney v. Napier et al
Filing
117
MEMORANDUM OPINION & ORDER: (1) All remaining claims against Defendant Angela Napier are DISMISSED WITH PREJUDICE pursuant to Rule 41(b) due to Plaintiff Robert McKinney's failure to prosecute; and(2) The Clerk of the Court shall STRIKE THIS MATTER FROM THE COURTS ACTIVE DOCKET. Signed by Judge Joseph M. Hood on 2/13/18.(JLM)cc: COR,pla & dft (US Mail)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
ROBERT WILLIS MCKINNEY,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
ANGELA NAPIER, et al.,
Defendants.
Plaintiff
Robert
Willis
Case No.
5:18-cv-031-JMH-HAI
MEMORANDUM OPINION
AND ORDER
***
McKinney,
a
former
state
inmate
proceeding pro se, filed this action on January 17, 2017, pursuant
to 42 U.S.C. § 1983, alleging various civil rights abuses while he
was
incarcerated
at
detention facility.
the
Northpoint
Training
Center,
a
state
Kentucky Department of Corrections records
indicate that McKinney was released on parole in September 2018.
But McKinney has failed to update his mailing address with the
Court and has not responded to a recent order to show cause.
As
a result, after weighing the relevant factors, McKinney’s failure
to
prosecute
justifies
dismissal
of
this
civil
action
with
prejudice pursuant to Federal Rule of Civil Procedure 41(b).
I.
Procedural Background
This case, originally filed in the United States District
Court for the Western District of Kentucky, was transferred to
this Court on January 25, 2018.
1
[DE 61].
Currently, the only
remaining Defendant in the action is Angela Napier, a former
employee at Northpoint.
On July 18, 2018, the Court entered a scheduling order in
this matter.
[DE 112].
Pursuant to the scheduling order, the
parties were to complete pretrial discovery on or before November
29, 2018, and file dispositive motions, if any, on or before
December 19, 2018.
[Id.].
Neither party has indicated that any
discovery has occurred in this matter since the scheduling order
was entered.
Furthermore, neither party has filed dispositive
motions. Additionally, there has been no docket activity initiated
by either party since July 2018.
[See DE 113].
Recently, the Court ordered the Plaintiff to show cause why
the matter should not be dismissed for failure to state a claim.
[DE 115].
A notice from the Clerk’s Office indicates that the
order was mailed to McKinney’s last known address and was returned
as undeliverable.
[DE 116].
A search of the Kentucky Offender
Online Lookup System indicates that McKinney was released on parole
on
or
around
Corrections,
September
KOOL:
4,
2018.
Kentucky
Kentucky
Online
Department
Offender
http://kool.corrections.ky.gov/KOOL/Details/99996,
last
of
Lookup,
visited
December 12, 2019.
As of this writing, McKinney has not responded to the Court’s
order to show cause and the time to respond has passed.
115].
[See DE
Additionally, there is no indication that McKinney has
2
updated his mailing address or contact information with the Court
Clerk since he was released on parole.
As a result, this matter
is ripe for review.
II.
At
this
juncture,
it
Analysis
does
not
appear
that
interested in continuing to prosecute this action.
McKinney
is
McKinney has
failed to comply with the Court’s scheduling order and has failed
to respond to the Court’s recent order to show cause. Furthermore,
mail sent to McKinney has been returned as undeliverable, even
though, as a pro se filer, McKinney has an obligation to update
the Court Clerk about any address changes.
Federal Rule of Civil procedure 41(b) “gives courts 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.’”
Knoll v. Am. Tel. & Tel. Co., 176 F.3d 359, 362-63 (6th
Cir. 1999) (citing Fed. R. Civ. P. 41(b)).
The Sixth Circuit has
held that district courts must be given substantial discretion in
docket management and avoidance of unnecessary burdens on taxsupported courts and opposing parties.
Id. at 363 (citing Matter
of Sanction of Baker, 744 F.2d 1438, 1441 (10th Cir. 1984)).
Four factors are to be considered when determining whether an
action should be dismissed for failure to prosecute: “(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
3
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 of the
action.”
Mulbah v. Detroit Bd. of Educ., 261 F.3d 586, 589 (6th
Cir. 2001).
A.
The relevant factors are considered below.
McKinney’s Failure to Cooperate and Comply with Court Orders
is Due to Fault
While the Court hesitates to impute willfulness or bad faith
on the part of the Plaintiff for failure to respond and prosecute
this matter, there is a clear indication that the failure to
prosecute in this matter is due to the fault of the Plaintiff.
The record indicates that the Court’s scheduling order, entered on
July 18, 2018, was served on the Plaintiff. [See DE 112].
Additionally,
as
a
pro
se
filer,
the
Plaintiff
has
an
obligation to update the Court of any change in address or contact
information.
The initial scheduling order entered in the Western
District of Kentucky stated: “Plaintiff is WARNED that his failure
to notify the Clerk of Court of any address change or failure to
comply with this or any subsequent order of the Court MAY RESULT
IN A DISMISSAL OF THIS CASE.”
[DE 10 at 4, Pg Id 111].
McKinney
was clearly aware of this obligation to update his address since
he filed notices of change of address on at least four occasions.
[DE 5, DE 12; DE 70; DE 100].
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Moreover, the record clearly indicates that McKinney knows
how to file notices and motions with the Court.
In fact, the
initial scheduling order requires that the Clerk of the Court send
McKinney a copy of the Pro Se Prisoner Handbook.
ID 111].
[DE 10 at 4, Pg
This handbook contains information for pro se prisoners
about how to file motions and contact the Court.
Finally,
there
is
no
indication
of
any
good
cause
for
McKinney’s failure to comply with the Court’s deadlines and orders.
Records indicate that McKinney was released on parole in September
2018.
As a result, McKinney likely has access to the necessary
resources to prosecute this case or, at the very least, update the
Court of his current address and contact information.
In sum, McKinney’s failure to update his address with the
Court, prosecute this matter, and comply with he Court’s show cause
order is based on the fault of McKinney alone.
As a result, the
first factor weighs in favor of dismissal.
B.
McKinney’s Failure to Prosecute Prejudices the Defendant
The remaining Defendant, Angela Napier, is proceeding pro se
in this matter.
Napier has neither filed any dispositive motions
nor moved for any relief in this matter.
Still, the prospect of
pending litigation certainly imposes some costs and burdens on
Napier.
Civil
litigation
can
be
especially for non-attorneys.
time
consuming
and
stressful,
While it appears that Napier has
5
expended little time and resources recently to defend herself in
this action, the continuance of and uncertainty surrounding this
litigation certainly imposes some stress.
In fact, as a former
corrections officer, Napier’s address has been sealed in this
matter for her protection.
Ultimately, continuance of this civil litigation without any
action or attempt to prosecute by McKinney will result in continued
stress
failure
and
to
uncertainty
prosecute
for
the
Napier.
action
Additionally,
makes
it
McKinney’s
difficult,
if
not
impossible, for Napier to defend herself in the matter or for the
Court to provide relief to either party.
As a result, McKinney’s
failure to prosecute has resulted and will continue to result in
prejudice to Napier.
C.
This factor weighs in favor of dismissal.
McKinney Was Warned That Failure to Cooperate May Result in
Dismissal
McKinney was clearly warned on two occasions that failure to
cooperate
may
result
in
dismissal.
First,
in
the
initial
scheduling order entered in the Western District of Kentucky, the
Court warned McKinney that failure to update his mailing address
may result in dismissal.
[DE 10 at 4, Pg Id 111].
McKinney was
clearly aware of this obligation but has failed to comply with the
Court’s order since he was released on parole.
Second, on January 10, 2019, this Court required McKinney to
show cause within twenty-one days why the action should not be
6
dismissed.
[DE 115].
McKinney failed to comply with this order
and an attempt to mail a copy of the order to McKinney was returned
undeliverable.
[See DE 113].
As a result, this factor weighs in
favor of dismissal.
D.
The Court Has Attempted to Employ Less Drastic Sanctions
Fourth, and finally, this Court’s show cause order was an
attempt at employing less drastic sanctions in this matter.
The
show cause order was intended to put McKinney on notice of the
need for his cooperation in this matter and catalyze some action
by McKinney.
McKinney’s failure to update his mailing address
makes it difficult for the Court to contact McKinney or employ any
additional sanctions other than dismissal. As a result, the fourth
factor also weighs in favor of dismissal.
III. Conclusion
Ultimately, while the Court is aware that dismissal under
Rule 41(b) is a harsh sanction, all four factors to be considered
before dismissal weigh in favor of dismissal of this action with
prejudice.
This Court cannot prosecute this action on McKinney’s
behalf and is not obliged to let this case sit on the Court’s
active docket indefinitely.
McKinney’s failure to prosecute this
action or update his address makes it impossible for the Court to
provide relief to either party or resort to less harsh sanctions
to mobilize McKinney to act.
Finally, allowing this lawsuit to
continue without any further action by McKinney will result in
7
continued uncertainty and stress for the pro se Defendant in this
matter.
Accordingly, upon the Court’s own motion, IT IS ORDERED
as follows:
(1)
All remaining claims against Defendant Angela Napier are
DISMISSED WITH PREJUDICE pursuant to Rule 41(b) due to Plaintiff
Robert McKinney’s failure to prosecute; and
(2)
The Clerk of the Court shall STRIKE THIS MATTER FROM THE
COURT’S ACTIVE DOCKET.
This the 13th day of February, 2019.
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