Quiroz v. Bureau of Prison Staff et al

Filing 30

MEMORANDUM ORDER: 1. The claims against Dfts Hurley and Morris are DISMISSED without prejudice for failure to prosecute and for failure to comply with an Order of the Court. 2. All pending motions are hereby DENIED as moot. Signed by Judge Joseph M. Hood on 1/7/2022. (RCB) cc: COR and Michel Quiroz by US Mail

Case: 7:21-cv-00051-JMH Doc #: 30 Filed: 01/07/22 Page: 1 of 3 - Page ID#: 1083

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at PIKEVILLE
MICHEL QUIROZ,
Plaintiff,
V.
BUREAU OF PRISONS STAFF, et
al.,
Defendants.
***

***

)
)
)
)
)
)
)
)
)
)
***

Civil No. 7:21-51-JMH

MEMORANDUM ORDER

***

Plaintiff Michel Quiroz filed this action on June 2021,
alleging that Defendants Morris, Preston, and Hurley assaulted him
while he was incarcerated at a federal penitentiary in Kentucky.
(DE 1). Four months later, Defendants Hurley and Morris filed a
motion to dismiss the claims against them. (DE 15).
The Court ordered Quiroz to file a response, and extended his
time to do so upon its own motion. (DE 17). In early November 2021,
for a second time, the Court extended Quiroz’s deadline to respond.
(DE 29). In both orders, the Court expressly cautioned Quiroz that
his failure to respond constituted grounds for dismissal. The
deadline for Quiroz to respond, December 9, 2021, has long since
passed without a response from the plaintiff.
Under such circumstances Federal Rule of Civil Procedure
41(b) permits a Court to dismiss the relevant claims for failure
to prosecute. To determine whether dismissal is appropriate under

Case: 7:21-cv-00051-JMH Doc #: 30 Filed: 01/07/22 Page: 2 of 3 - Page ID#: 1084

Rule 41(b), the Court may consider a variety of factors, such as
“(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 of
the action.” Knoll v. American Tel. & Tel., 176 F.3d 359, 363 (6th
Cir. 1999).
Here, consideration of the Knoll factors supports dismissal
of the claims against Defendants Hurley and Morris for Quiroz’s
failure to prosecute and for his failure to comply with an Order
of the Court. Twice, now, the Court advised Quiroz that the claims
would be dismissed if he did not file a response within the time
permitted. Further, the Court has waited well beyond the stated
deadline to see if a compliant response would be filed. Quiroz has
not done so.
Quiroz’s failure to file any response in the face of clear
warnings regarding the consequences of his choice indicates that
his decision is a “willful” one. Giving a prior warning of possible
dismissal is pivotal to the determination of willfulness. Stough
v. Mayville Community Schools, 138 F.3d 612, 615 (6th Cir. 1998)
(“Prior notice, or the lack thereof, is ... a key consideration
when determining whether a district court abuses its discretion in
dismissing a case pursuant to Rule 41(b).”). Quiroz’s failure to
2

Case: 7:21-cv-00051-JMH Doc #: 30 Filed: 01/07/22 Page: 3 of 3 - Page ID#: 1085

respond is a strong indication that he intentionally chose to
disregard the Court’s Order and/or to abandon his claims. Kovacic
v. Tyco Valves & Controls, LP, 433 F. App’x 376, 382 (6th Cir.
2011). Quiroz’s claims against Defendants Hurley and Morris will
therefore be dismissed without prejudice for failure to prosecute
pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.
Bowles v. City of Cleveland, 129 F. App’x 239, 242 (6th Cir. 2005).
Defendant Preston was served with process on October 18, 2021.
(DE 22). Quiroz’s claims against him therefore remain pending.
Quiroz must take affirmative steps to prosecute his claims against
Preston. If Quiroz takes no action to do so within 45 days, the
Court will enter an Order to show cause why the case should not be
dismissed for failure to prosecute.
Accordingly, it is ORDERED as follows:
1.

The claims against Defendants Hurley and Morris are
DISMISSED without prejudice for failure to prosecute and
for failure to comply with an Order of the Court.

2.

All pending motions are hereby DENIED as moot.

This the 7th day of January, 2022.

3