Mooney v. Wilson et al
MEMORANDUM OPINION & ORDER: (1) Plaintiff 's Complaint [D.E. No. 2 ] is DISMISSED WITH PREJUDICE; (2) The motion to dismiss, or in the alternative, motion for summary judgment filed by Defendants Jeffrey Cornelius, Kermit Johnson, and Sheila Saylor, [D.E. No. 25 ] is DENIED as MOOT; and (3) The Court will enter a judgment contemporaneously with thisMemorandum Opinion and Order. Signed by Judge Henry R. Wilhoit, Jr on 7/18/12.(SYD)cc: mailed to pro se filer
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION AT LONDON
EDRYCK DANTE MOONEY,
K. JOHNSON, et al.,
Civil Action No. 11-98-HRW
Pro se plaintiff Edryk Dante Mooney has failed to respond to the defendants'
motion to dismiss this action, as well as this Court's Order expressly requiring him
to do so upon peril of dismissal for his failure to prosecute this action. As explained
below, his Complaint will be dismissed.
On March 29, 2011, Mooney filed this pro se civil rights action alleging that
officials at the United States Penitentiary-McCreary, in Pine Knot, Kentucky, had
violated his First Amendment rights by interfering with his incoming legal mail. On
May 4, 2011, the Court dismissed the complaint and entered judgment in favor ofthe
defendants on initial screening under 28 U.S.C. § 1915(e), finding that Mooney had
failed to state a claim upon which relief could be granted. On September 14, 2011,
the Court granted Mooney's motion to reopen his case in part, dismissing some
claims but ordering three prison officials to respond to his complaint. [D. E. No. 11]
On February 24,2012, those three defendants filed a motion to dismiss, or in
the alternative, motion for summary judgment. [D.E. No. 25] When three months
had passed without any response from Mooney, on May 31, 2012, the Court ordered
him to file a response opposing the motion within 21 days, and expressly warned him
that it would dismiss his complaint if he failed to do so. [D.E. No. 26]
On June 6, 2010, Mooney filed - not a response in opposition to the motion
but a motion to hold this action in abeyance indefinitely. [D.E. No. 27] Mooney
alleged that he was confined in the prison's segregated housing unit and had no
access to a law library, and that he would soon be transferred to the Special
Management Unit ("SMU") at another federal prison for the next eighteen months or
more without access to a law library. The defendants objected, noting that pursuant
to 28 C.F.R. § 543.11 and various BOP Program Statements, all federal inmates
confined in both SHU and SMU have access to legal materials and a law library.
[D.E. No. 28] The Court denied Mooney's motion to stay this proceeding on June 8,
2012, and again ordered him to file a substantive response to the defendants' motion
to dismiss this action by June 21, 2012. [D.E. No. 29] That date has come and gone
without response from Mooney.
A federal court has inherent authority to dismiss an action on its own initiative
ifa party fails to prosecute the case or to comply with a court order, the Federal Rules
of Civil Procedure, or the court's own local rules. Fed. R. Civ. P. 41(b); Link v.
Wabash R. Co., 370 U.S. 626, 629 (1962). An involuntary dismissal for failure to
prosecute generally operates as an adjudication on the merits. Pepin v. Larchwood
Healthcare Group, Inc., 2012 WL 253328, at *2 (N.D. Ohio 2012).
A district court must consider four factors in determining whether to dismiss
an action 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
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) (citing Knoll v. American
Tel. & Tel. Co., 176 F.3d 359,363 (6th Cir. 1999).
The first factor favors dismissal because Mooney has failed to respond to the
defendants' motion, which they filed on February 24, 2012, even though the Court
gave Mooney nearly four months to respond to that motion. Notably, between
February 24,2012 and June 6, 2012, Mooney made no effort to seek an extension of
time in which to respond to the motion; it was only after the Court entered the May
30,2012, Order that Mooney claimed, for the first time, that because he was confined
in SHU, he lacked access to legal materials and a law library.
The second and third factors also warrant dismissal ofMooney's claims, given
the procedural history ofthis case. The defendants have expended considerable time
and resources to defend this action, which was re-opened on Mooney's motion, but
Mooney has failed to respond to the defendants' motion and otherwise diligently
prosecute this action.
Further, in light ofMooney's disregard ofthis action, the dismissal will be with
prejudice. Numerous decisions in this circuit warrant dismissal of an action with
prejudice where a plaintiffhas discontinued participating in a case which he initiated,
either by failing to respond to discovery requests, motions to dismiss, or motions for
summary judgment after the court has warned the plaintiffthat inaction would result
in dismissal of his claims. See Pepin, 2012 WL 253328, at *2; Jarnigan v. Steele,
2011 WL 4437153 at *3 (M.D. Tenn. 2011); Williams v. Santiago, 2009 WL
2886051, at *3 (E.D. Mich. 2009); Eagles Nest Ranch & Academy v. Bloom Tp. Bd.
o/Trustees, 2007 WL 2359763 (S.D. Ohio 2007); R.T ex rei. Harris v. Cincinnati
Public Schools, 2006 WL 1476199, at *1-2 (S.D. Ohio 2006). Mooney's complaint
will therefore be dismissed with prejudice and the defendants' motion to dismiss will
be denied as moot.
Accordingly, it is ORDERED as follows:
Plaintiff Edryk Dante Mooney's Complaint [D.E. No.2] is
DISMISSED WITH PREJUDICE;
The motion to dismiss, or in the alternative, motion for summary
judgment filed by Defendants Jeffrey Cornelius, Kermit Johnson, and Sheila Saylor,
[D.E. No. 25] is DENIED as MOOT; and
The Court will enter a judgment contemporaneously with this
Memorandum Opinion and Order.
This 18 TH day of July, 2012.
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