Grimes v. Allen et al
MEMORANDUM AND ORDER: For the reasons discussed herein, Plaintiff is ASSESSED the full filing fee of $400.00, and this action will be DISMISSED WITH PREJUDICE pursuant to Rule 41(b). The Court CERTIFIES that any appeal from th is action would not be taken in good faith and would be totally frivolous. Accordingly, should Plaintiff file a notice of appeal, he will be DENIED leave to appeal in forma pauperis. Signed by District Judge J Ronnie Greer on 04/26/2017. (C/M to pro se Plaintiff at addresses docketed on 03/23/17) (AMP)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
CHARME ALLEN, et al.,
MEMORANDUM AND ORDER
The Court is in receipt of a complaint under 42 U.S.C. § 1983 [Doc. 1] and a motion for
leave to proceed in forma pauperis [Doc. 2] filed pro se by Demetris Grimes, a prisoner at the
Knox County Detention Facility. On October 3, 2016, the Court entered an Order advising
Plaintiff that his motion for leave to proceed in forma pauperis was deficient, as the application
was incomplete and it was not accompanied by a certified copy of his inmate trust account for
the previous six-month period [Doc. 3 (citing 28 U.S.C. § 1915(a)(2))]. The Court advised
Plaintiff that he “shall . . . pay the full filing fee or . . . submit the required documents” within
thirty days from the date of the Court’s Order [Id.]. The Court further advised Plaintiff that, “if
he fail[ed] to fully comply with this Order within the time required, the Court shall presume that
Plaintiff is not a pauper, shall assess the full amount of fees, and shall order the case dismissed
for want of prosecution.” [Id.].
The Order was mailed to Plaintiff at the address listed on his application for in forma
pauperis status – that is, the Knox County Detention Facility [Doc. 1, 3]. That copy of the
Court’s Order was returned to sender indicating that Plaintiff is no longer at that facility [Doc. 4].
Because Plaintiff provided two additional addresses in a letter attached to his complaint, the
Clerk sent additional copies of the Court’s Order to Plaintiff on March 23, 2017 to the additional
addresses provided [See unnumbered docket entry dated March 23, 2017]. Those Orders have
not been returned to the Court. More than thirty (30) days have now passed, and Plaintiff has not
filed any response to the Court’s 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. 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 finds that Plaintiff’s failure to respond or comply is, in
fact, the fault of the Plaintiff. Pursuant to Local Rule 83.13, it is the duty of a pro se party to
promptly notify the Clerk and the other parties to the proceedings of any change in his or her
address, to monitor the progress of the case, and to prosecute or defend the action diligently.
E.D. Tenn. L.R. 83.13. Notification of a change of address must be accomplished by filing a
notice with the Clerk and service of the notice upon all other parties within fourteen (14) days of
the change of address. E.D. Tenn. L. R. 83.13. The failure of a pro se party to timely respond to
an order or pleading addressed to the last address provided to the Clerk may result in dismissal of
the case or other appropriate action. E.D. Tenn. L.R. 83.13. Since the fault lies with Plaintiff,
the first factor weighs in favor of dismissal.
The second factor, however, weighs against dismissal: since the Defendants have not yet
been served or made 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 of the possible consequences of such a failure. Finally,
the Court finds that alternative sanctions would not be effective. Plaintiff filed a motion for
leave to proceed in forma pauperis; therefore, the Court has no indication that Plaintiff has the
ability to pay a monetary sanction. 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).
For the reasons discussed herein, Plaintiff is ASSESSED the full filing fee of $400.00,
and this action will be 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 will be 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/J. RONNIE GREER
UNITED STATES DISTRICT JUDGE
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