Gilson v. Anderson County Detention Facility

Filing 4

MEMORANDUM OPINION. Signed by Chief District Judge Thomas A Varlan on 5/23/18. (copy mailed to Aeron Michael Gilson and Sheriff of Anderson County; copy forwarded to Court's Financial Deputy) (JBR) Modified text on 5/23/2018 (JBR).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AERON MICHAEL GILSON,
Plaintiff,
v.
ANDERSON COUNTY DETENTION
FACILITY,
Defendant.

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No.:

3:17-CV-286-TAV-HBG

MEMORANDUM OPINION
This is a pro se prisoner’s complaint for violation of 42 U.S.C. §1983. On April 17,
2018, the Court entered an order providing that Plaintiff would have thirty days to pay the
filing fee or to submit the documents necessary for Plaintiff to proceed in forma pauperis
[Doc. 3]. More than thirty-three1 days have passed and Plaintiff 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 Plaintiff’s failure to prosecute and failure
to comply with the Court’s orders.
Rule 41(b) of the Federal Rules 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, LLC v. Nemchik, 483 F.

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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, Plaintiff had an additional three days to
respond to the order. Fed. R. Civ. P. 6(d).

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 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 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 Plaintiff’s failure to respond to or comply
with the Court’s previous order is due to Plaintiff’s willfulness and/or fault. Specifically,
it appears that Plaintiff either received the Court’s order and decided not to respond thereto,
or failed to update his address and/or monitor this action as this Court’s Local Rule 83.13
requires.
As to the second factor, the Court finds that Plaintiff’s failure to comply with the
Court’s order has not prejudiced Defendant.
As to the third factor, the Court warned Plaintiff that the Court would dismiss the
case if Plaintiff did not timely comply with the Court’s previous order [Doc. 3 p. 1–2].
Finally, as to the fourth factor, the Court finds that alternative sanctions would not
be effective. Plaintiff was a prisoner who was seeking leave to proceed in forma pauperis
in this action and Plaintiff has not pursued this action since filing his motion for leave to
proceed in forma pauperis more than ten months ago [Doc. 2].

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For the reasons set forth above, the Court concludes that the relevant factors weigh
in favor of dismissal of Plaintiff’s action pursuant to Rule 41(b). White v. City of Grand
Rapids, No. 01-229234, 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, Plaintiff will be ASSESSED
the filing fee of $400.00 and this action will be DISMISSED for want of prosecution
pursuant to Rule 41(b).
The custodian of Plaintiff’s inmate trust account will be DIRECTED to submit to
the Clerk, U.S. District Court, 800 Market Street, Knoxville, Tennessee 37902, twenty
percent (20%) of Plaintiff’s preceding monthly income (or income credited to his trust
account for the preceding month), but only when such monthly income exceeds $10.00,
until the full filing fee of $400.00 has been paid to the Clerk’s Office. McGore v.
Wrigglesworth, 114 F.3d 601, 607 (6th Cir. 1997), overruled on other grounds by Jones v.
Bock, 549 U.S. 199 (2007).
To ensure compliance with the fee-collection procedure, the Clerk will be
DIRECTED to mail a copy of this memorandum opinion and the accompanying order to
the Sheriff of Anderson County. This order shall be placed in Plaintiff’s institutional file
and follow him if he is transferred to another correctional facility. The Clerk will also be
DIRECTED to furnish copies of this memorandum opinion and the accompanying order
to the Court’s financial deputy.
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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 ORDER WILL ENTER.

s/ Thomas A. Varlan
CHIEF UNITED STATES DISTRICT JUDGE

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