Kinslow v. Chapman
Filing
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MEMORANDUM AND OPINION: Accordingly, this action will be DISMISSED for want of prosecution pursuant to Rule 41(b) and the Clerk will be DIRECTED to terminate Respondents motion to substitute attorney [Doc. 63] as it is moot. 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 JUDGMENT WILL ENTER.Signed by District Judge Travis R McDonough on 7/9/2018. (DJH, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
BATTRICK D. KINSLOW,
Petitioner,
v.
ARVIL CHAPMAN and UNITED
STATES ATTORNEY GENERAL,
Respondents.
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Case No. 3:15-cv-429
Judge Travis R. McDonough
Magistrate Judge Christopher H. Steger
MEMORANDUM OPINION
This is a pro se prisoner’s petition for habeas corpus relief pursuant to 28 U.S.C. § 2241.
On May 24, 2018, the United States Postal Service (“USPS”) returned the Court’s mail to
Petitioner as undeliverable, with a notation indicating that Petitioner has been paroled or
discharged [Doc. 64]. Accordingly, on June 8, 2018, the Court entered an order providing that
Petitioner had fifteen days to show good cause as to why this matter should not be dismissed for
failure to prosecute [Doc. 65]. More than eighteen1 days have passed since entry of this order
and Petitioner has not complied with this order or otherwise communicated with the Court.
Further, the USPS again returned the mail containing the most recent order to the Court as
undeliverable [Doc. 67]. Accordingly, for the reasons set forth below, this matter will be
DISMISSED due to Petitioner’s failure to prosecute and failure to comply with the Court’s
orders.
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Service of the Court’s previous order was made by mail pursuant to Rule 5(b)(2)(C) of the Federal
Rules of Civil Procedure. Accordingly, Petitioner had an additional three days to respond to the
order. Fed. R. Civ. P. 6(d).
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 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 Petitioner’s failure to respond to or comply with
the Court’s previous order is due to Petitioner’s willfulness or fault. Specifically, it appears that
Petitioner failed to update his address and/or monitor this action as required by Local Rule 83.13.
As to the second factor, the Court finds that Petitioner’s failure to comply with the
Court’s order has not prejudiced Respondents.
As to the third factor, the Court warned Petitioner that the Court would dismiss the case if
Petitioner did not timely comply with the Court’s previous order [Doc. 65 p. 2].
Finally, as to the fourth factor, the Court finds that alternative sanctions would not be
effective. Petitioner was a prisoner proceeding in forma pauperis in this action [Doc. 10] and
Petitioner has not pursued this action since he sent a notice of filing parole violation report and
detainer detail [Doc. 59] more than two and a half years ago.
For the reasons set forth above, the Court concludes that the relevant factors weigh in
favor of dismissal of Petitioner’s action pursuant to Rule 41(b). White v. City of Grand Rapids,
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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). Accordingly, this action will be DISMISSED for want of prosecution pursuant
to Rule 41(b) and the Clerk will be DIRECTED to terminate Respondent’s motion to substitute
attorney [Doc. 63] as it is moot.
The Court must now decide whether to grant Petitioner a certificate of appealability
(“COA”). A COA should issue where a petitioner makes a “substantial showing of a denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). When a district court denies a habeas petition on a
procedural basis without reaching the underlying claim, a COA should only issue if “jurists of
reason would find it debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable whether the district court
was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
The Court is dismissing this petition because Petitioner failed to prosecute this action and
did not comply with a Court order, a procedural ground. Reasonable jurists could not find that
this dismissal is debatable or wrong. Accordingly, a certificate of appealability shall not issue.
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 JUDGMENT WILL ENTER.
/s/ Travis R. McDonough
TRAVIS R. MCDONOUGH
UNITED STATES DISTRICT JUDGE
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