Leffew v. Goins et al

Filing 11

MEMORANDUM OPINION. Signed by District Judge Thomas W Phillips on 3/5/18. (copy mailed to Roger A Leffew) (JBR)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT GREENEVILLE
ROGER A. LEFFEW,
Plaintiff,
v.
ROBBIE GOINS, ERIC JONES, and
RANDY COMER,
Defendants.

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No.

2:15-CV-236-TWP-MCLC

MEMORANDUM OPINION
This is a pro se prisoner’s complaint filed pursuant to 42 U.S.C. § 1983. On February 8,
2018, the Court entered an order providing, inter alia, that Plaintiff had fifteen days from entry of
that order to file an amended complaint [Doc. 10]. More than fifteen days have passed and Plaintiff
has not responded to 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 that 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 comply with the Court’s order could be willful if Plaintiff received the order, but chose
not to respond thereto. On the other hand, Plaintiff’s failure to comply with the Court’s order
could be negligent if Plaintiff did not receive the Court’s order because he failed to update his
address and/or monitor this action as required by this Court’s Local Rule 83.13. Accordingly, the
first factor weighs in favor of dismissal.
As to the second factor, the Court finds that Defendants have not been prejudiced by
Plaintiff’s failure to comply with the Court’s order.
As to the third factor, the Court warned Plaintiff that the Court would dismiss this case if
he failed to comply with the Court’s order [Doc. 10 p. 5].
Finally, as to the fourth factor, the Court finds that alternative sanctions would not be
effective. Plaintiff was a prisoner who was seeking leave to proceed in forma pauperis in this
action [Doc. 2] and Plaintiff has not pursued this action since filing supplements to his motion for
leave to proceed in forma pauperis more than two years ago.
For the reasons set forth above, the Court concludes that the relevant factors weigh in favor
of dismissal of Plaintiff’s action without prejudice pursuant to Rule 41(b). White v. City of Grand
Rapids, No. 01-229234, 34 F. App’x 210, 211, 2002 WL 926998, at *1 (6th Cir. May 7, 2002)
(finding that a pro se prisoner’s complaint “was subject to dismissal for want of prosecution
because he failed to keep the district court apprised of his current address”); Jourdan v. Jabe, 951
F.2d 108 (6th Cir. 1991).
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.
ENTER:
s/ Thomas W. Phillips
SENIOR UNITED STATES DISTRICT JUDGE