Harrell v. Taylor et al

Filing 8

MEMORANDUM AND ORDER in support of the following Order dismissing case.Signed by District Judge Pamela L. Reeves on 6/6/18. (c/m Daniel Harrell RIVERBEND MAXIMUM SECURITY INSTITUTION 7475 COCKRILL BEND BOULEVARD NASHVILLE, TN 37209-1048) (ADA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
DANIEL HARRELL,

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Plaintiff,
v.
MICHAEL TAYLOR, et al.,
Defendants.

No.: 3:15-cv-00431
REEVES/GUYTON

MEMORANDUM ORDER
Pro se prisoner Daniel Harrell (“Plaintiff”) filed this Complaint arising under 42 U.S.C. § 1983
[Doc. 2] on September 25, 2015. On April 25, 2018, the Court screened the Complaint pursuant to
the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. §§ 1915(e)(2)(B) and 1915(A) [Doc. 6]. The
Court concluded that Plaintiff’s Eighth Amendment excessive force claim against Michael Taylor in
his individual capacity would proceed, but it dismissed the remainder of Plaintiff’s claims and the
remaining defendants [Id.]. The Court “ORDERED [Plaintiff] to complete the service packet [for
Taylor] and return it to the Clerk’s office within thirty (30) days from the date of the entry of this
Order,” and put Plaintiff “ON NOTICE that failure to return the completed service packets within
this time period may result in the dismissal of this action for failure to prosecute and/or failure to
comply with a court order.” [Id. at 13-14 (citing Fed. R. Civ. P. 41(b))].
The Order and service packet were mailed to Plaintiff at his current location of incarceration.1
More than thirty days have now passed, and Plaintiff has not returned a service packet for Taylor or
responded to the Court’s Order in any other way.

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The Court notes that it conducted independent research regarding Plaintiff’s current place of
incarceration and took judicial notice that Plaintiff is currently housed at Riverbend Maximum
Security Institution, not Bledsoe County Correctional Complex, which was the last address provided
to the Court by Plaintiff [Doc. 6 at 1-2]. The Court thus took additional steps to ensure that Plaintiff

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). 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 considers 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 Regional Refuse Sys., Inc. v. Inland
Reclamation Co., 842 F.2d 150, 155 (6th Cir. 1988).
As to the first factor, the Court can discern no reason for Plaintiff’s failure other than
willfulness or fault. Plaintiff has demonstrated an ability to file documents with the Court in the past,
and there is no indication that Plaintiff did not receive the Court’s Order. The Court is left to conclude
that Plaintiff received the Order and chose not to comply with its terms. Accordingly, this factor
weighs in favor of dismissal. The second factor, however, weighs against dismissal: since the
Defendant has not yet been served or made to appear, he has not been prejudiced by any delay. By
contrast, the third factor clearly weighs in favor of dismissal, as Plaintiff has failed to comply with
the Court’s Order, despite being expressly warned that such a failure would result in dismissal.

received the Order and service packet, despite Plaintiff’s failure to comply with his obligation
pursuant to Eastern District of Tennessee Local Rule 83.13 to timely notify the Court of any change
of address.
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Finally, the Court finds that alternative sanctions would not be effective. Plaintiff is proceeding in
forma pauperis; therefore, the Court has no indication that Plaintiff has the ability to pay a monetary
fine. The Court does not believe that 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 Plaintiff’s compliance. The Court thus concludes that, in
total, the factors weigh in favor of dismissal of Plaintiff’s action with prejudice pursuant to Rule 41(b).
Accordingly, this action is hereby DISMISSED WITH PREJUDICE 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. See Fed. R. App. P. 24. Accordingly, should Plaintiff file a notice of appeal, he
is DENIED leave to appeal in forma pauperis. See 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24.

AN APPROPRIATE ORDER WILL ENTER.

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UNITED STATES DISTRICT
A S S
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UNITED STATES DISTRICT JUDGE

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