Williams v. Phillips
Filing
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MEMORANDUM OPINION: this matter will be DISMISSED due to Petitioner's failure to prosecute and failure to comply with the Court's orders; this action will be DISMISSED for want of prosecution pursuant to Rule 41(b) and the Clerk will be DIRECTED to STRIKE both Petitioner's unsigned petition [Doc. 1] and unsigned motion for leave to proceed in forma pauperis [Doc. 2]. 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 ORDER WILL ENTER. Signed by District Judge Harry S Mattice, Jr on 11/15/2018. (BJL,)*Mailed to Edward Williams.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
EDWARD WILLIAMS,
Petitioner,
v.
SHAWN PHILLIPS,
Respondent.
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No.:
3:17-CV-034-HSM-HBG
MEMORANDUM OPINION
This is a pro se prisoner’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
On April 18, 2018, the Court entered an order providing that Petitioner would have twenty days
from the date of entry of that order to return signed copies of his motion for leave to proceed in
forma pauperis and petition, as well as the documents required to proceed in forma pauperis [Doc.
4]. More than twenty-three1 days have passed and Petitioner has not complied with this order or
otherwise communicated with the Court. 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.
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):
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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).
(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 and/or fault. Specifically, the Court’s
search for Petitioner on the felony offender website for the Tennessee Department of Correction
(https://apps.tn.gov/foil-app/search.jsp) establishes that Petitioner is still incarcerated in Morgan
County Correctional Complex, which is the last address Petitioner provided to the Court [Doc. 1
p. 12]. Thus, it appears that Petitioner received the Court’s order and decided not to respond
thereto.
As to the second factor, the Court finds that Petitioner’s failure to comply with the Court’s
order has not prejudiced Respondent.
As to the third factor, the Court warned Petitioner that the Court would dismiss the case
and strike the petition and motion for leave to proceed in forma pauperis if Petitioner did not timely
comply with the Court’s previous order [Doc. 4 p. 2].
Finally, as to the fourth factor, the Court finds that alternative sanctions would not be
effective. Petitioner was a prisoner who sought leave to proceed in forma pauperis in this matter
[Doc. 2] and Petitioner has not pursued this action since filing his petition [Doc. 1] more than a
year ago.
For the reasons set forth above, the Court concludes that the relevant factors weigh in favor
of dismissal of this action pursuant to Rule 41(b). White v. City of Grand Rapids, No. 01-229234,
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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 STRIKE both Petitioner’s unsigned petition [Doc. 1] and
unsigned motion for leave to proceed in forma pauperis [Doc. 2].
The Court must now consider whether to issue a certificate of appealability (“COA”),
should Petitioner file a notice of appeal. Under 28 U.S.C. § 2253(a) and (c), a petitioner may
appeal a final order in a habeas proceeding only if he is issued a COA, and a COA may only be
issued where a Petitioner has made a substantial showing of the 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 finds that jurists of reason would not debate
the Court’s finding that Petitioner did not comply with the Court’s previous order.
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 ORDER WILL ENTER.
E N T E R:
/s/ Harry S. Mattice, Jr._______
HARRY S. MATTICE, JR.
UNITED STATES DISTRICT JUDGE
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