Faulkner v. Phillips et al

Filing 35

MEMORANDUM OPINION: Accordingly, this action will be DISMISSED WITH PREJUDICE, sua sponte, for want of prosecution. Defendants' motion to dismiss [Doc. 28] will therefore be DENIED as moot. Signed by District Judge J Ronnie Greer on 07/26/2018. (Copy of Order mailed to David Faulkner) (AMP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE

DAVID FAULKNER,
Plaintiff,
v.
CPL. BYRD, SGT. SMITHERS, and
C.O. WILLIAMS,
Defendants.

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No. 3:16-CV-549-JRG-DCP

MEMORANDUM OPINION
This matter is before the Court upon periodic review. Plaintiff filed a pro se complaint
alleging violations of his constitutional rights under 42 U.S.C. § 1983 on September 12, 2016
[Doc. 2]. On September 29, 2017, the Court entered an Order dismissing all of Plaintiff’s claims,
with the exception of his Eighth Amendment claims against Defendants Smithers, Williams, Byrd,
and an unknown Defendant [Doc. 12 at 12]. The Court ordered Plaintiff to complete service
packets for Defendants Smithers, Williams, and Byrd, and return them to the Clerk’s office within
twenty-one (21) days of the date of the Order [Id.]. On October 6, 2017, the Court issued summons
to Defendants Byrd, Smithers, and Williams [See unnumbered docket entry dated October 6,
2017]. The Court’s docket reflects that summonses were executed as to Defendants Smithers and
Byrd on November 7, 2017 [Docs. 15, 16].
However, also on November 7, 2017, the summons for Defendant Williams was returned
unexecuted [Doc. 17]. The Court granted Plaintiff’s motion to compel on December 14, 2017, and
ordered the Warden of MCCX to provide the Court with any information that would help the U.S.

Marshal effectuate service on Defendant Williams [Doc. 20]. Summons were subsequently
executed as to Defendant Williams on January 25, 2018 [Doc. 22].
Defendants Byrd, Smithers, and Williams then filed an answer to Plaintiff’s complaint
[Doc. 27], as well as a motion to dismiss for lack of prosecution [Doc. 28]. In their motion to
dismiss, Defendants state that Plaintiff is no longer in custody of the Tennessee Department of
Correction, and has failed to update the Court with his present address [Doc. 28 at 2]. Further, the
Court’s previous Order granting Defendants’ motion for an extension of time in which to file an
answer [Doc. 25], and the Court’s notice of the availability of a magistrate judge [Doc. 29] were
both returned as undeliverable when sent to Plaintiff’s listed address [Docs. 26, 30].
The Court then entered an Order directing Plaintiff to show cause within fifteen days as to
why his claims should not be dismissed pursuant to Federal Rule of Civil Procedure 41(b) for the
failure to prosecute [Doc. 32]. Plaintiff was instructed that if he failed to timely file a response
showing good cause, his claims against Defendants Byrd, Smithers, and Williams would be
dismissed [Id.]. The Court’s Order was subsequently returned as undeliverable [Doc. 34].
More than fifteen days have passed, and Plaintiff has failed to respond 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. & 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 examines
four factors when considering dismissal under Rule 41(b):

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(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).
As to the first factor, the Court finds that Plaintiff’s failure to respond or comply can be
attributed to his own willfulness or fault. Plaintiff failed to respond to the Court’s previous show
cause Order, despite being instructed by the Court to do so. 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. The Court previously ordered Plaintiff to inform the
Court of any address changes immediately, and warned Plaintiff that the failure to provide a correct
address within fourteen days may result in the dismissal of this action [Doc. 12 p. 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.
Accordingly, the Court finds that the first factor weighs in favor of dismissal.

See, e.g.,

See Williams v. Blanchard, No. CIV. 3:12-0932, 2014 WL 3672105, at *1–2 (M.D. Tenn. July 23,
2014) (adopting recommendation that the plaintiff’s suit be dismissed with prejudice where the
plaintiff’s location was unknown and the plaintiff had failed to pursue his claims after being
released from incarceration).
The second factor also weighs in favor of dismissal, as Defendants Byrd, Smithers, and
Williams have all responded to Plaintiff’s complaint. Additionally, 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

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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 fine.
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 will be DISMISSED WITH PREJUDICE, sua sponte, for want
of prosecution. See Fed. R. Civ. P. 41(b); see also Link v. Wabash R.R. Co., 370 U.S. 626, 630–
31 (1962) (recognizing the court’s authority to dismiss a case sua sponte for lack of prosecution);
White v. City of Grand Rapids, 34 F. App’x 210, 211 (6th Cir. 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, 110 (6th Cir.
1991). 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. Therefore, 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. Defendants’ motion to dismiss [Doc. 28] will therefore be DENIED as moot.
AN APPROPRIATE ORDER WILL ENTER.

s/J. RONNIE GREER
UNITED STATES DISTRICT JUDGE

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