Dumas v. Berrong et al

Filing 7

MEMORANDUM OPINION in support of the following Order dismissing case. Signed by Chief District Judge Thomas A. Varlan on 11/8/18. (c/m James Dumas BLOUNT COUNTY DETENTION CENTER 920 E LAMAR ALEXANDER PARKWAY MARYVILLE, TN 37804 ) (ADA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
JAMES DUMAS,
Plaintiff,
v.
JAMES L. BERRONG,
JOHN ADAMS, and
CHRIS CANTRELL,
Defendants.

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No.:

3:17-CV-228-TAV-HBG

MEMORANDUM OPINION
James Dumas (“Plaintiff”) initiated this action when he filed a complaint on May
26, 2017, alleging constitutional violations under 28 U.S.C. § 1983, along with a motion
for leave to proceed in forma pauperis [Docs. 1, 2]. On May 24, 2018, the Court granted
Plaintiff’s motion for leave to proceed in forma pauperis and screened Plaintiff’s complaint
to determine whether, inter alia, the pleading failed to state a claim which would entitle
Plaintiff to relief under § 1983 [Doc. 3]. The Court ordered that process shall issue to
Defendants on Plaintiff’s claim regarding denial of access to religious material [Id.].
Additionally, the Court directed the Clerk to send Plaintiff service packets (a blank
summons and USM 285 form) for Defendants and ordered Plaintiff to complete the service
packets and return them to the Clerk’s Office within twenty days of the date of the Order
[Id.]. Plaintiff was forewarned that failure to return the completed service packet within
the time required could jeopardize his prosecution of this action [Id.]. The Order and
packets were mailed to Plaintiff at the address he listed as his current address. However,

on June 22, 2018, the mail sent by this Court was returned as “Undeliverable” and “Unable
to Forward” [Doc. 4].
Thereafter, the Court ordered Plaintiff to show cause within fourteen days
explaining why his case should not be dismissed for failure to prosecute or failure to follow
the order of this Court [Doc. 5]. The Court notified Plaintiff that failure to comply with
the terms of that order would result in dismissal of his case [Id.]. On August 13, 2018, the
show-cause order was returned as “Undeliverable” noting “Not At This Address” and
“Unable To Forward” [Doc. 6]. Plaintiff has not filed any other response to the Court’s
Order, and the deadline to do so has long since passed.
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 ordered.
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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. Notably, the last two attempts made by
this Court to contact Plaintiff regarding his case have been unsuccessful. Whether willful
or negligent, Plaintiff has failed to update his address or monitor this action as required by
Local Rule 83.13, which provides that it is the duty of the pro se party to monitor the
progress of the case and to prosecute or defend the action diligently. Accordingly, the first
factor weighs in favor of dismissal.
The second factor, however, weighs against dismissal; since defendants Sheriff
James L. Berrong, Captain John Adams, and Chief Chris Cantrell 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, as Plaintiff has
failed to comply with the Court’s orders, despite being expressly warned of the possible
consequences of such a failure [Doc. 3 p. 2; Doc. 5 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 could 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 compliance.
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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, this action is hereby DISMISSED WITH
PREJUDICE in accordance with Rule 41(b).
AN APPROPRIATE ORDER WILL ENTER.

s/ Thomas A. Varlan
CHIEF UNITED STATES DISTRICT JUDGE

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