Ross v. Cauley
Filing
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MEMORANDUM OPINION. Signed by Chief District Judge Thomas A Varlan on 1/22/18. (copy mailed to Andre Ross at McDowell County FCI) (JBR)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
ANDRE D. ROSS,
Petitioner,
v.
KENNY CAULEY,
Respondent.
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No.:
1:17-CV-104-TAV-SKL
MEMORANDUM OPINION
On April 10, 2017, Andre D. Ross (“Petitioner”) filed a “Notice to Accept U.S.C. 2254
Motion” [Doc. 1] and a motion to proceed in forma pauperis [Doc. 1]. On December 12, 2017,
the Court granted Petitioner’s motion to proceed in forma pauperis and advised Petitioner that his
pleading was not in compliance with the Rules Governing Section 2254 Cases [Doc. 6].
Specifically, the Court found that Petitioner failed to substantially follow an approved form in
attempting to set forth his grounds for relief [Id.]. Nevertheless, the Court gave Petitioner a limited
opportunity to clarify his grounds for relief and bring his filing into compliance with the relevant
rules [Id.]. The Court directed the Clerk to send Petitioner a court-approved preprinted form
motion used to file motions to vacate under § 2254 and ordered Petitioner to complete the form
motion, sign it, and return it to the Court within thirty days of the date of the Order [Id.]. Petitioner
was forewarned that if he “fail[ed] to timely comply with this Order, the Court will dismiss this
action for want of prosecution and failure to comply with orders of the Court” [Id. at 4].
More than thirty days have passed, and Petitioner has not filed any response to the Court’s
order. Federal Rule of Civil Procedure 41(b)1 gives this Court the authority to dismiss a case for
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See Habeas Rule 11. “The Federal Rules of Civil Procedure, to the extent that they are
not inconsistent with any statutory provisions, may be applied to a proceeding under these rules.”
Day v. McDonough, 547 U.S. 198, 207 (2006).
“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, LLC 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). 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 looks to 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 also 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 Petitioner’s failure to prosecute this action can be
attributed to his own willfulness or fault. Notably, the Order sent to Petitioner’s address on file
was not returned to the Court. Petitioner’s failure to respond to the Court’s Order 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). Pursuant to Local Rule 83.13, it is the duty of the pro se party to monitor the progress of
the case and to prosecute or defend the action diligently. See E.D. Tenn. L.R. 83.13. Accordingly,
in either case, the first factor weighs in favor of dismissal.
The second factor, however, weighs against dismissal. As defendant Kenny Cauley has
not yet been served, he has not been prejudiced by Petitioner’s inactions.
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The third factor clearly weighs in favor of dismissal, as Petitioner 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. Petitioner has
filed a motion for leave to proceed in forma pauperis; therefore, the Court has no indication that
Petitioner has the ability to pay a monetary fine. The Court does not believe that a 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 Petitioner’s compliance. The Court thus concludes that, in total, the relevant factors
weigh in favor of dismissal of Petitioner’s action with prejudice pursuant to Rule 41(b).
For the reasons discussed herein, this action is hereby DISMISSED WITH PREJUDICE
pursuant to Rule 41(b).
AN APPROPRIATE ORDER WILL ENTER.
s/ Thomas A. Varlan
CHIEF UNITED STATES DISTRICT JUDGE
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