TOLBERT v. WYATT
Filing
19
MEMORANDUM OPINION AND RECOMMENDED RULING - MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 12/15/11, that this action be DISMISSED WITHOUT PREJUDICE. (Law, Trina)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
ERIC L. TOLBERT,
Plaintiff,
v.
DR. (FNU) WYATT,
Defendant.
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1:10CV49
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This
case
comes
before
Magistrate Judge sua sponte.
2011.)
the
undersigned
United
States
(See Docket Entry dated Dec. 14,
The case began when Plaintiff filed a pro se Complaint
pursuant to 42 U.S.C. § 1983 in the United States District Court
for the Eastern District of North Carolina. (Docket Entry 1.) The
case thereafter was transferred to this Court.
(Docket Entry 3.)
The Court then ordered Plaintiff to complete and to return a
summons form for Defendant.
That
Order
(Docket Entry 8.)
specifically
cautioned
Plaintiff
that
any
“[f]ailure to provide an address wherein service may be made on
this Defendant will result in dismissal of the action.”
(Id. at 2
(citing Fed. R. Civ. P. 4(m).) After no completed summons form was
received from Plaintiff, a recommendation of dismissal was entered.
(Docket Entry 10.)
Plaintiff objected and submitted therewith a
sworn statement that he timely had provided a completed summons
form to prison officials for mailing to the Court.
(Docket Entry
12.) Based on that representation, the recommendation of dismissal
was withdrawn, the Clerk was directed to send Plaintiff a new
summons form, and Plaintiff again was ordered to return the
completed form.
Plaintiff
(Docket Entry 13.)
returned
a
summons
form
with
an
address
for
Defendant at a North Carolina Department of Correction facility and
the Clerk’s Office submitted the summons (so addressed) to the
United States Marshal’s Office for service.
(Docket Entry 15.)
The United States Marshal’s Office returned that summons unserved
with a notation reflecting that Defendant no longer worked for the
North Carolina Department of Correction, that Defendant may have
moved to Indiana, and that no forwarding address was available.
(Docket
Entry
16.)
Plaintiff
subsequently
submitted
another
summons form to the Clerk’s Office with an address for Defendant in
Raleigh, North Carolina, whereupon the Clerk’s Office again issued
a summons (addressed as Plaintiff indicated) and forwarded it to
the United States Marshal’s Office for service. (Docket Entry 17.)
The United States Marshal’s Service returned that summons unserved
with a notation reflecting that the address in question belonged to
the North Carolina Department of Correction and that persons at
said address refused to accept service of the summons because
Defendant was unknown to them and did not work for the North
Carolina Department of Correction.
(Docket Entry 18.)
“The Federal Rules of Civil Procedure recognize that courts
must have the authority to control litigation before them, and this
authority includes the power to order dismissal of an action for
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failure to comply with court orders.
Fed. R. Civ. P. 41(b).
In
this case, appellant failed to respond to a specific directive from
the court.”
Accordingly,
Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989).
the
Court
should
dismiss
this
action
based
on
Plaintiff’s failure to comply with the Court’s Orders directing him
to provide a proper address for service on Defendant.
In making that recommendation, the undersigned Magistrate
Judge recognizes that “dismissal is not a sanction to be invoked
lightly.”
Id.
Generally, before dismissing an action based on a
party’s failure to comply with an order, a court should consider:
“(i) the degree of personal responsibility of the plaintiff; (ii)
the amount of prejudice caused the defendant; (iii) the existence
of a history of deliberately proceeding in a dilatory fashion, and
(iv) the existence of a sanction less drastic than dismissal.” Id.
In this case, Plaintiff bears sole responsibility for the instant
non-compliance, the delay caused by Plaintiff’s non-compliance
prejudices Defendant’s right to adjudication when memories remain
fresh,
Plaintiff
has
had
multiple
opportunities
to
submit
a
properly-completed summons form and has a history of improper
-3-
litigation conduct in other cases,1 and no other sanction appears
feasible or sufficient.
Moreover,
the
Court
previously
warned
Plaintiff
that
“[f]ailure to provide an address wherein service may be made on
this Defendant will result in dismissal of the action.”
Entry 8 at 2.)
(Docket
In assessing the propriety of dismissal as a
sanction, an “explicit warning that a recommendation of dismissal
would result from failure to obey [an] order is a critical fact
. . . .”
Ballard, 882 F.2d at 95.
Indeed, “[i]n view of the
warning, the [Court] ha[s] little alternative to dismissal.
Any
other course would have [the effect of] plac[ing] the credibility
of the [C]ourt in doubt and invit[ing] abuse.”
Id.
IT IS THEREFORE RECOMMENDED that this action be DISMISSED
WITHOUT PREJUDICE.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
December 15, 2011
1
As another court has recognized, “Plaintiff is no stranger to the federal
courts in that he previously has filed at least seven federal cases over the
preceding five years.”
Tolbert v. Stevenson, No. 3:09CV382-MU-02, 2009 WL
3245385, at *1 (W.D.N.C. Oct. 5, 2009) (unpublished). Indeed, as the court in
which Plaintiff originally filed this action noted, “Plaintiff is a frequent
filer who previously was determined to be a ‘three striker.’ That is, . . .
Plaintiff already ha[s] sustained at least three prior dismissals for frivolity
and/or failure to state a claim for relief.” (Docket Entry 3 at 2.)
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