Mason v. Howard et al
Filing
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MEMORANDUM OPINION.ASSESSED the filing fee and this action will be DISMISSED without prejudice.AN APPROPRIATE ORDER WILL ENTER.Signed by District Judge Curtis L Collier on 12/18/2017. (SAC, )Copy mailed to Mason, Warden of Silverdale and Court's financial deputy.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT CHATTANOOGA
DEKENDREA MASON,
Plaintiff,
v.
CHRIS HOWARD,
Defendant.
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No.: 1:16-CV-397-CLC-SKL
MEMORANDUM OPINION
This is a pro se prisoner’s complaint under 42 U.S.C. § 1983. On October 12, 2016, the
Court entered an order providing that Plaintiff would have thirty 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. 3]. The Court also warned Plaintiff that if she failed to timely comply with that
order, the Court would presume Plaintiff is not a pauper, assess the full amount of fees, and order
the case dismissed for want of prosecution [Id. at 1–2]. More than a year has passed and Plaintiff
has not complied with this 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. & 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):
(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 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 Plaintiff’s failure to respond to or comply with the
Court’s previous order is due to Plaintiff’s willfulness and/or fault. Specifically, Plaintiff’s
failure to respond to the Court’s order may be willful (if she received the order and declined to
respond), or it may be negligent (if she did not receive the order because she failed to update her
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 Plaintiff’s failure to comply with the Court’s
order has not prejudiced Defendant.
As to the third factor, the Court warned Plaintiff that the Court would dismiss this case if
she failed to comply with the Court’s order [Doc. 2 p. 1–2].
Finally, as to the fourth factor, the Court finds alternative sanctions would not be
effective. Plaintiff filed an affidavit of indigency with her complaint [Doc. 1] and has not
pursued this case since she filed her complaint.
For the reasons set forth above, the Court concludes the relevant factors weigh in favor of
dismissal of Plaintiff’s action without prejudice pursuant to Rule 41(b). Accordingly, Plaintiff
will be ASSESSED the filing fee of $400.00 and this action will be DISMISSED without
prejudice pursuant to Rule 41(b).
The custodian of Plaintiff’s inmate trust account will be DIRECTED to submit to the
Clerk, U.S. District Court, 900 Georgia Avenue, Chattanooga, Tennessee 37402, twenty percent
(20%) of Plaintiff’s preceding monthly income (or income credited to Plaintiff’s trust account for
the preceding month), but only when such monthly income exceeds $10.00, until the full filing
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fee of $400.00 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 Warden of
Silverdale Detention Center and the Attorney General for the State of Tennessee. This order
shall be placed in Plaintiff’s institutional file and follow her if she 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.
The Court CERTIFIES that any appeal from this order would not be taken in good faith.
AN APPROPRIATE ORDER WILL ENTER.
/s/
CURTIS L. COLLIER
UNITED STATES DISTRICT JUDGE
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