Moore v. Centurion of Tennessee, LLC et al (PSLC3)
Filing
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MEMORANDUM OPINION. Signed by Chief District Judge Thomas A Varlan on 5/23/18. (copy mailed to Rendell Moore) (JBR)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
RENDELL MOORE,
Plaintiff,
v.
CENTURION OF TENNESSEE, et al.,
Defendants.
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No.:
3:15-CV-526-TAV-DCP
MEMORANDUM OPINION
Rendell Moore (“Plaintiff”) filed this civil rights action pursuant to 42 U.S.C.
§ 1983 on October 19, 2015 [Doc. 1]. The Court detailed the procedural history of this
case in its April 12, 2018 Order:
Plaintiff filed his original Complaint on October 19, 2015, raising several
claims of constitutional violations arising from a December 2014 encounter
with numerous employees of Centurion of Tennessee [Doc. 1].
On January 13, 2016, the Court reviewed Plaintiff’s Complaint pursuant to
the Prison Litigation Reform Act of 1995 (“PLRA”), 28 U.S.C. § 1915, et
seq. [Doc. 7]. The Court allowed Plaintiff’s claims against Defendants
Centurion, Mike Smith, Donnie Henson, Troy Dollar, and Officer Bryant to
proceed, ordering Plaintiff to return completed service packets (each
including a summons and USM 285 form) “within twenty (20) days”;
Plaintiff was “forewarned that failure to return the completed service
packet[s] within the time required could jeopardize his prosecution of this
action [Id. at 7–8]. The Court ordered that these Defendants “SHALL
answer or otherwise respond to the complaint within twenty (20) days from
the date of service” [Id. at 8]. The Court also allowed Plaintiff an opportunity
to amend his Complaint to clarify the facts and allegations supporting his
claims against Defendants Jamie Lundy, Nick McCloud, Officer Tressler,
and Officer Davis, and ordered that such amendment be filed within thirty
days [Id. at 6–7]. The remaining claims and defendants were dismissed for
failure to state a claim [Id. at 5–7].
Plaintiff filed his Amended Complaint on February 4, 2016, clarifying the
factual allegations against Lundy, McCloud, Tressler, and Davis in
compliance with the Court’s Order [Doc. 8]. The Court’s docket reflects that
Plaintiff returned the service packets for Dollar, Henson, Smith, Bryant, and
Centurion on February 5, 2016; however, Plaintiff did not include
summonses for Centurion and Bryant, and thus, the Clerk did not issue
summons to these two Defendants [see unnumbered docket entry dated Feb.
5, 2016]. Dollar, Henson, and Smith, however, were served on February 12,
2016, and the summonses were returned as executed on February 17, 2016
[Docs. 9, 10, 11].
[Doc. 14 at 1–2]. The Court ordered Plaintiff to file a response to the Order within thirty
days (1) advising the Court as to whether he wished to proceed in prosecuting this action
as to Centurion and Bryant, and (2) showing good cause as to why his claims against
Henson, Dollar, and Smith should not be dismissed for failure to prosecute based on
Plaintiff’s failure to request default against these served Defendants [Id. at 2–3]. The Court
placed Plaintiff “ON NOTICE that his failure to file a timely response to this Order WILL
result of the dismissal of these parties with prejudice pursuant to Rule 41(b)” [Id. at 2, 3].
The Court also ordered Plaintiff to complete and return service packets for Defendants
Lundy, McCloud, Tressler, and Davis within twenty days, and placed Plaintiff “ON
NOTICE that failure to timely comply with these requirements WILL results in the
dismissal of these Defendants for failure to prosecute and/or failure to comply with a court
order pursuant to Fed. R. Civ. P. 41(b)” [Id. at 3–4].
The Order and service packets were mailed to Plaintiff at the most recent address
that he provided to the Court. On May 3, 2018, Plaintiff filed completed service packets
for Henson, Dollar, and Smith—each of whom was served with a summons and complaint
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on February 12, 2016—along with a copy of his Amended Complaint [Doc. 15; see Docs.
8–11]. Plaintiff did not file service packets for Lundy, McCloud, Tressler, or Davis, nor
did he file a brief or responsive filing addressing his failure to prosecute Centurion, Bryant,
Henson, Dollar, and Smith.
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, 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 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 numerous motions
with the Court in the past, and to respond appropriately to the Court’s Orders in the past.
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Plaintiff received the Court’s Order, as demonstrated by his subsequent filing, but that
filing failed to address any of the deficiencies or issues set forth in the Court’s Order. The
Court is left to conclude that Plaintiff received the Order, but made a willful choice to
submit a response that did not comply with the clear requirements set forth in that Order.
Accordingly, this factor weighs in favor of dismissal. The second factor, however, weighs
against dismissal. Because the Defendants have either not yet been served or have been
served and have failed to appear, they have 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 with prejudice. 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
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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.
s/ Thomas A. Varlan
CHIEF UNITED STATES DISTRICT JUDGE
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