Johnson v. Silverdale CCA et al

Filing 5

MEMORANDUM AND ORDER: For the reasons discussed herein, Plaintiff is ASSESSED the full filing fee of $400.00, and this action will be DISMISSED WITH PREJUDICE pursuant to Rule 41(b). The Court CERTIFIES that any appeal from th is action would not be taken in good faith and would be totally frivolous. Accordingly, should Plaintiff file a notice of appeal, he will be DENIED leave to appeal in forma pauperis. Signed by District Judge J Ronnie Greer on 04/26/2017. (C/M to pro se Plaintiff at address docketed on 03/22/17) (AMP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT CHATTANOOGA

JAQUAN JOHNSON,
Plaintiff,
v.
SILVERDALE CCA, et al.,
Defendants.

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No. 1:16-CV-308-JRG-CHS

MEMORANDUM AND ORDER
The Court is in receipt of a complaint under 42 U.S.C. § 1983 [Doc. 1] and a motion for
leave to proceed in forma pauperis [Doc. 2] filed pro se by Jaquan Johnson, a prisoner at the
Silverdale Detention Center. On October 3, 2016, the Court entered an Order, advising Plaintiff
that his motion for leave to proceed in forma pauperis was deficient, as the application was
incomplete and it was not accompanied by a certified copy of his inmate trust account for the
previous six-month period [Doc. 3 (citing 28 U.S.C. § 1915(a)(2))]. The Court advised Plaintiff
that he “shall . . . pay the full filing fee or . . . submit the required documents” within thirty days
from the date of the Court’s Order [Id.]. The Court further advised Plaintiff that, “if he fail[ed]
to fully comply with this Order within the time required, the Court shall presume that Plaintiff is
not a pauper, shall assess the full amount of fees, and shall order the case dismissed for want of
prosecution.” [Id.].
The Order was mailed to Plaintiff at the address listed on his complaint – that is, the
Silverdale Detention Center [Doc. 1, 3]. That copy of the Court’s Order was returned to sender
indicating that Plaintiff is no longer at that facility [Doc. 4].

However, because Plaintiff

provided his permanent home address to the Court in his application to proceed in forma
pauperis, the Clerk sent a second copy of the Court’s Order to Plaintiff, this time to his home
address, on March 22, 2017 [See unnumbered docket entry dated March 22, 2017]. That Order
has not been returned to the Court. More than thirty (30) days have now passed, and Plaintiff has
not filed any response to the Court’s Order.
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. Co., 176 F.3d 359, 362-63 (6th Cir. 1999). Involuntary dismissal under Rule
41(b) “operates as an adjudication on the merits.” Fed. R. Civ. P. 41(b); see Link v. Wabash R.R.
Co., 370 U.S. 626, 629 (1962) (“The authority of a federal trial court to dismiss a plaintiff’s
action with prejudice because of his failure to prosecute cannot seriously be doubted.”).
The Court considers four factors when considering dismissal under Rule 41(b):
(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); see Regional Refuse Sys., Inc. v.
Inland Reclamation Co., 842 F.2d 150, 155 (6th Cir. 1988).
As to the first factor, the Court finds that Plaintiff’s failure to respond or comply is, in
fact, the fault of the Plaintiff. Pursuant to Local Rule 83.13, it is the duty of a pro se party to
promptly notify the Clerk and the other parties to the proceedings of any change in his or her
address, to monitor the progress of the case, and to prosecute or defend the action diligently.
E.D. Tenn. L.R. 83.13. Notification of a change of address must be accomplished by filing a
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notice with the Clerk and service of the notice upon all other parties within fourteen (14) days of
the change of address. E.D. Tenn. L. R. 83.13. The failure of a pro se party to timely respond to
an order or pleading addressed to the last address provided to the Clerk may result in dismissal of
the case or other appropriate action. E.D. Tenn. L.R. 83.13. Since the fault lies with Plaintiff,
the first factor weighs in favor of dismissal.
The second factor, however, weighs against dismissal: since the Defendants have not yet
been served or made to appear, they have not been prejudiced by any delay. By contrast, the
third factor clearly weighs in favor of dismissal, as Plaintiff has failed to comply with the Court’s
Order, despite being expressly warned of the possible consequences of such a failure. Finally,
the Court finds that alternative sanctions would not be effective. Plaintiff filed a motion for
leave to proceed in forma pauperis; therefore, the Court has no indication that Plaintiff has the
ability to pay a monetary sanction. The Court does not believe that dismissal without prejudice
would be an effective sanction to promote Plaintiff’s respect for this Court’s deadlines and
orders, given that the threat of dismissal with prejudice was not effective in compelling
Plaintiff’s compliance. The Court thus concludes that, in total, the factors weigh in favor of
dismissal of Plaintiff’s action with prejudice pursuant to Rule 41(b).
For the reasons discussed herein, Plaintiff is ASSESSED the full filing fee of $400.00,
and this action will be DISMISSED WITH PREJUDICE pursuant to Rule 41(b). The Court
CERTIFIES that any appeal from this action would not be taken in good faith and would be
totally frivolous. See Fed. R. App. P. 24. Accordingly, should Plaintiff file a notice of appeal,
he will be DENIED leave to appeal in forma pauperis. See 28 U.S.C. § 1915(a)(3); Fed. R.
App. P. 24.
AN APPROPRIATE ORDER WILL ENTER.

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s/J. RONNIE GREER
UNITED STATES DISTRICT JUDGE

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