Carr v. Berrong et al
MEMORANDUM AND OPINION finding that this case will be DISMISSED WITH PREJUDICE pursuant to Rule 41(b). AN APPROPRIATE ORDER WILL ENTER. Signed by District Judge Thomas W Phillips on 1/9/2018. A copy of this M&O has been sent via U.S. mail to Joshua Carr.(MDG)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
JOSHUA LYNN CARR,
SHERIFF BERRONG, CAPTAIN ADAMS,
and CHIEF CANTRELL,
Pro se prisoner, Joshua Lynn Carr (“Plaintiff”) initiated this action on April 24, 2017 when
he filed a civil rights complaint pursuant to 42 U.S.C. § 1983 [Doc. 2] and a motion for leave to
proceed in forma pauperis [Doc. 1]. On July 19, 2017, the Court entered an Order advising
Plaintiff that his motion for leave to proceed in forma pauperis was deficient, as 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 forewarned 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” See Fed. R. Civ. P.
The Order was first mailed to Plaintiff at the address listed on his application for in forma
pauperis status – that is, the Blount County Detention Center [See Doc. 1 p. 1]. That copy of the
Court’s Order was returned as “Undeliverable” indicating that Plaintiff was no longer at that
facility [Doc. 4]. However, because Plaintiff also provided his permanent home address to the
Court in his Complaint, the Clerk sent a second copy of the Court’s Order to Plaintiff, this time to
his home address, on September 28, 2017. [See unnumbered docket entry dated September 28,
2017]. That Order has not been returned to the Court.
More than 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. & 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
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 prosecute this action can be
attributed to his own willfulness or fault. Specifically, the Order sent to Plaintiff’s home address
was not returned to the Court. Plaintiff’s failure to respond to the Court’s Order may be willful (if
he received the Order and declined to respond), or it may be negligent (if he did not receive the
Order because he failed to update his address and/or monitor this action as required by Local Rule
83.13). Pursuant to Local Rule 83.13, it is the duty of the pro se party to monitor the progress of
the case and to prosecute or defend the action diligently. See E.D. Tenn. L.R. 83.13. Accordingly,
the first factor weighs in favor of dismissal.
The second factor, however, weighs against dismissal; since defendants have not yet been
served, they have not been prejudiced by Plaintiff’s inactions.
By contrast, the third factor clearly weighs in favor of dismissal, because the record reflects
that the Court warned Plaintiff that the Court would dismiss this case if he failed to comply with
the Court’s Order [Doc. 3 p. 2].
Finally, the Court finds that alternative sanctions would not be effective. Plaintiff has 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 does not believe that a 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
The Court concludes that, in total, the factors weigh in favor of dismissal of Plaintiff’s
action. Thus, this case will be DISMISSED WITH PREJUDICE pursuant to Rule 41(b).
AN APPROPRIATE ORDER WILL ENTER.
_s/ Thomas W. Phillips_________
Senior United States District Judge
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