Wallis v. Civic Corporation et al (ASH)
Filing
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MEMORANDUM AND OPINION as set forth in following order. Signed by Chief District Judge Thomas A Varlan on 8/28/18. (c/m to Benjamin T Wallis, P.O. Box 1302, Athens, TN 37371) (ABF)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
BENJAMIN T. WALLIS,
Plaintiff,
v.
CIVIC CORPORATION,
CORRECT CARE SOLUTIONS,
HAMILTON COUNTY, and
CHRISTOPHER HOWARD,
Defendants.
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No.:
1:17-CV-243-TAV-CHS
MEMORANDUM OPINION
This case is before the Court on a pro se prisoner’s complaint for violation of his
rights, brought under 42 U.S.C. § 1983. On June 15, 2018, the Court entered an order
providing that Plaintiff would have twenty days from receipt of the order to complete the
service packets and return them to the Clerk’s office [Doc. 4 p. 2].1 More than two months
have passed, and Plaintiff has not complied with this order or otherwise communicated
with the Court. Accordingly, for the reasons set forth below, this matter will be dismissed
due to Plaintiff’s failure to prosecute and to comply with the Court’s orders.
Rule 41(b) of the Federal Rule of Civil Procedure 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
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Also on June 15, 2018, the Court sent Plaintiff a notice regarding the requirement that he
notify the Court of any change in address [Doc. 5].
F. App’x 1, 9 (6th Cir. 2012); see also 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 also Reg’l Refuse Sys., Inc.
v. Inland Reclamation Co., 842 F.2d 150, 155 (6th Cir. 1988).
With respect to the first factor, the Court finds that Plaintiff’s failure to respond to
or comply with the Court’s previous order is due to Plaintiff’s willfulness or fault.
Specifically, it appears that Plaintiff received the Court’s order, but did not comply
therewith.
With respect the second factor, the Court finds that Plaintiff’s failure to comply with
the Court’s order has not prejudiced Defendants.
With respect the third factor, the Court warned Plaintiff that the Court would dismiss
the case if Plaintiff did not timely comply with the Court’s previous order [Doc. 4 p. 2].
Finally, with respect to the fourth factor, the Court finds that alternative sanctions
would not be effective. Plaintiff was a prisoner who was granted leave to proceed in forma
pauperis in this action [Doc. 4 p. 1], and Plaintiff has not pursued this action since filing
his complaint and motion for leave to proceed in forma pauperis approximately eleven
months ago [Docs. 1 and 2].
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For the reasons set forth above, the Court concludes that the relevant factors weigh
in favor of dismissal of Plaintiff’s action pursuant to Rule 41(b). Erby v. Kula, 113 F.
App’x 74, 76 (6th Cir. 2004 (affirming district court’s dismissal of civil rights complaint
for want of prosecution where the plaintiff did not comply with deficiency order that
warned the plaintiff that failure to comply would result in dismissal of the case).
Accordingly, this action will be DISMISSED for want of prosecution 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. Fed. R. App. P. 24.
AN APPROPRIATE ORDER WILL ENTER.
s/ Thomas A. Varlan
CHIEF UNITED STATES DISTRICT JUDGE
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