Banks v. Roe et al

Filing 6

MEMORANDUM OPINION in support of the following Order dismissing case. Signed by Chief District Judge Thomas A. Varlan on 6/28/18. (c/m to Frederick Banks #05711068NORTHEAST OHIO CORRECTIONAL CENTER2240 HUBBARD ROAD YOUNGSTOWN, OH 44505 ) (ADA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
FREDERICK BANKS,
Plaintiff,
v.
ADRIAN ROE, MARK R. HORNAK,
ROBERT CESSAR, SOO SONG,
SEAN LANGFORD, ROBERT WERNER,
and MIKE POMPEO,
Defendants.

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No.:

3:17-CV-329-TAV-DCP

MEMORANDUM OPINION
This is a pro se prisoner’s complaint for violation of 42 U.S.C. § 1983. On June 4,
2018, the Court entered an order providing that Plaintiff would have fifteen days from the
date of entry of that order to pay the filing fee or to submit the documents necessary for
Plaintiff to proceed in forma pauperis [Doc. 3]. More than eighteen days1 have passed and
Plaintiff has not complied with this order or otherwise communicated with the Court. Also,
the United States Postal Service returned the mail containing this order to the Court as
undeliverable [Doc. 5]. 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.

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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).

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, LLC 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 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 or fault. Specifically, it
appears that Plaintiff failed to update his address and/or monitor this action as 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 Defendants.
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. 4 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 [Doc. 2] and Plaintiff has not pursued this action since filing his motion for
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leave to proceed in forma pauperis and amended complaint [Doc. 3] more than ten months
ago.
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, this action will be
DISMISSED for want of prosecution pursuant to Rule 41(b).
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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