Roller v. Quintana
MEMORANDUM OPINION.Petitioner will be ASSESSED the filing fee of $5.00 and this action will be DISMISSED without prejudice pursuant to Rule 41(b). Judgment Order will enter.Signed by District Judge Harry S Mattice, Jr on 2/13/2018. (SAC, )Copy mailed to Roller, FMC Lexington, Commissioner of the BOP, Court's financial deputy.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
This is a pro se prisoner’s petition for habeas corpus relief filed under 28 U.S.C. § 2254.
On November 27, 2017, the Court entered an order providing that Petitioner would have fifteen
days from the date of entry of the order to pay the full filing fee or to submit the necessary
documents to proceed in forma pauperis [Doc. 2]. The Court also warned Petitioner that if he
failed to timely comply with that order, the Court would presume that Petitioner is not a pauper,
assess the full amount of fees, and order the case dismissed for want of prosecution and/or failure
to comply with Court orders [Id. at 1]. More than eighteen days have passed1 since entry of this
order and Petitioner has not complied therewith.
Federal Rule of Civil Procedure 41(b) gives this Court 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.” See,
e.g., Nye Capital Appreciation Partners, L.L.C. v. Nemchik, 483 F. App’x 1, 9 (6th Cir. 2012);
Knoll v. Am. Tel. & Tel. Co., 176 F.3d 359, 362-63 (6th Cir. 1999). The Court considers four
factors when considering dismissal under Fed. R. Civ. P. 41(b):
Service of the Court’s previous order was made by mail pursuant to Rule 5(b)(2)(C) of
the Federal Rules of Civil Procedure. Accordingly, Petitioner had an additional three days to
respond to the order. Fed. R. Civ. P. 6(d).
(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
Wu v. T.W. Wang, Inc., 420 F.3d 641, 643 (6th Cir. 2005); see Reg’l Refuse Sys., Inc. v. Inland
Reclamation Co., 842 F.2d 150, 155 (6th Cir. 1988).
As to the first factor, the Court finds that Petitioner’s failure to respond to or comply with
the Court’s previous order is due to Petitioner’s willfulness and/or fault. Specifically, the Court
sent Petitioner an order providing him with instructions as to how to proceed in this matter and
directing the Clerk to send Petitioner the necessary documents [Doc. 2]. Petitioner’s failure to
respond may be willful (if he received the order and declined to respond), or it may be negligent
(if he did not receive the order because he failed to update his address and/or monitor this action
as required by Local Rule 83.13). Either way, the first factor weighs in favor of dismissal.
As to the second factor, the Court finds that Respondent has not been prejudiced by
Petitioner’s failure to comply with the Court’s order, as the Court has not yet ordered Respondent
to respond to the § 2254 petition.
As to the third factor, the record reflects that Petitioner was warned that the Court would
dismiss this case if he failed to comply with the Court’s order [Doc. 2 p. 1].
Finally, as to the fourth factor, the Court finds that alternative sanctions would not be
effective. Petitioner was a prisoner at the time he filed his petition nearly three years ago and he
has not pursued this action since doing so.
For the reasons set forth above, the Court concludes that the relevant factors weigh in favor
of dismissal of Petitioner’s action without prejudice pursuant to Rule 41(b).
Petitioner will be ASSESSED the filing fee of $5.00 and this action will be DISMISSED without
prejudice pursuant to Rule 41(b).
The custodian of Petitioner’s inmate trust account will be DIRECTED to submit to the
Clerk, U.S. District Court, 900 Georgia Avenue, Chattanooga, Tennessee 37402, as an initial
partial payment, whichever is the greater of: (a) twenty percent (20%) of the average monthly
deposits to Petitioner’s inmate trust account; or (b) twenty percent (20%) of the average monthly
balance in his inmate trust account for the six-month period preceding the filing of the complaint.
28 U.S.C. § 1915(b) (1) (A) and (B). Thereafter, the trust account custodian shall submit twenty
percent (20%) of Petitioner’s preceding monthly income (or income credited to his trust account
for the preceding month), but only when such monthly income exceeds $10.00, until the full filing
fee of $5.00 has been paid to the Clerk’s Office. McGore v. Wrigglesworth, 114 F.3d 601, 607
(6th Cir. 1997), overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007).
To ensure compliance with the fee-collection procedure, the Clerk will be DIRECTED to
mail a copy of this memorandum opinion and the accompanying order to the custodian of inmate
accounts at the Lexington Federal Medical Center and to the Commissioner of the Bureau of Prisons
to ensure that the custodian of Plaintiffs’ inmate trust accounts complies with that portion of the
Prison Litigation Reform Act relating to payment of the filing fees. This order shall be placed in
Petitioner’s institutional file and follow him if he is transferred to another correctional facility.
The Clerk will also be DIRECTED to furnish copies of this memorandum opinion and the
accompanying order to the Court’s financial deputy. 2
The Court is aware that this directive may be futile. On December 27, 2017, the Court
received information indicating that plaintiff may have been released from the custody of the
Bureau of Prisons. If this is so, the plaintiff did not furnish the Court with a forwarding address,
as is also required.
The Court must now decide whether to grant Petitioner a certificate of appealability
(“COA”). A COA should issue where a petitioner makes a “substantial showing of a denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). When a district court denies a habeas petition on a
procedural basis without reaching the underlying claim, a COA should only issue if “jurists of
reason would find it debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable whether the district court was
correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
The Court is dismissing this petition because Petitioner did not comply with a Court order,
a procedural ground. Reasonable jurists could not find that this dismissal is debatable or wrong.
Accordingly, a certificate of appealability shall not issue and, should Petitioner file a notice of
appeal, leave to appeal in forma pauperis will be DENIED.
AN APPROPRIATE JUDGMENT ORDER WILL ENTER.
/s/ Harry S. Mattice, Jr._____
HARRY S. MATTICE, JR.
UNITED STATES DISTRICT JUDGE
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