Duncan v. Grief et al

Filing 13

MEMORANDUM AND OPINION by Judge Greg N. Stivers on 10/30/2017; The Court will enter a separate Order consistent with this Memorandum Opinion.cc: Plaintiff, pro se, counsel (MNM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
EMOSHIA L. DUNCAN

PLAINTIFF
CIVIL ACTION NO. 5:17CV-P42-GNS

v.
SKYLA GRIEF et al.

DEFENDANTS
MEMORANDUM OPINION

On March 17, 2017, while confined at Kentucky State Penitentiary (KSP), Plaintiff filed
a pro se civil-rights complaint pursuant to 42 U.S.C. § 1983 (DN 1). On July 14, 2017, the Court
performed initial review of the complaint (DN 7) pursuant to 28 U.S.C. § 1983 and allowed the
Eighth Amendment failure-to-protect claim to proceed against Defendant Robertson in her
individual capacity. All other claims and Defendants were dismissed. On this same date, the
Court entered an Order Regarding Service and Scheduling Order governing the development of
the continuing claim. The Order Regarding Service and Scheduling Order was mailed to
Plaintiff at the KSP address he had provided to the Court. On July 25, 2017, that document sent
to Plaintiff was returned to the Court (DN 10) marked “Left 6-5-2017” and “Return To Sender,
Refused, Unable To Forward.”
Upon filing the action in this Court, Plaintiff assumed the responsibility to keep this
Court advised of his current address and to actively litigate his claims. See Local Rule 5.2(e)
(“All pro se litigants must provide written notice of a change of residential address, and, if
different, mailing address, to the Clerk and to the opposing 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.”). Because Plaintiff has not provided any notice of an address

change to the Court, neither orders or notices from this Court nor filings by Defendant can be
served on him.
Rule 41(b) of the Federal Rules of Civil Procedure authorizes the involuntary dismissal
of an action if a plaintiff fails to prosecute or to comply with an order of the court. Jourdan v.
Jabe, 951 F.2d 108, 109 (6th Cir. 1991) (“Fed. R. Civ. P. 41(b) recognizes the power of the
district court to enter a sua sponte order of dismissal.”). Although federal courts afford pro se
litigants some leniency on matters that require legal sophistication, such as formal pleading rules,
the same policy does not support leniency from court deadlines and other procedures readily
understood by laypersons, particularly where there is a pattern of delay or failure to pursue a
case. Id. at 110. “Further, the United States Supreme Court has recognized that courts have an
inherent power to manage their own affairs and may dismiss a case sua sponte for lack of
prosecution.” Lyons-Bey v. Pennell, 93 F. App’x 732, 733 (6th Cir. 2004) (citing Link v. Wabash
R.R. Co., 370 U.S. 626, 630-31 (1962)).
Review of the docket reveals that Plaintiff has taken no action in this case subsequent to
filing the complaint and application to proceed without prepayment of fees on March 17, 2017.
Review of the docket further reveals that over three months have passed since the copy of the
Order Regarding Service and Scheduling Order mailed to Plaintiff was returned to the Court
without Plaintiff providing any notice of an address change. Because Plaintiff has failed to
provide an updated address to the Court and an Order sent to Plaintiff by this Court has been
returned, the Court concludes that Plaintiff has failed to comply with Local Rule 5.2(e), has
abandoned any interest in prosecuting this action, and that dismissal is warranted. See, e.g.,
White v. City of Grand Rapids, 34 F. App’x 210, 211 (6th Cir. 2002) (“[Plaintiff’s] complaint
was subject to dismissal for want of prosecution because he failed to keep the district court

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apprised of his current address.”); Hananiah v. Shelby Cty. Gov’t, No. 12-3074-JDT-TMP, 2015
WL 52089, at *3 (W.D. Tenn. Jan. 2, 2015) (“Without such basic information as a plaintiff’s
current address, courts have no recourse but to dismiss a complaint for failure to prosecute.”).
Therefore, the Court will enter a separate Order consistent with this Memorandum
Opinion.
Date: October 30, 2017

cc:

Plaintiff, pro se
Counsel of Record
4416.003

Greg N. Stivers, Judge
United States District Court

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