Tellis v. State of Tennessee
MEMORANDUM AND OPINION as set forth in following order. Signed by District Judge Pamela L Reeves on 11/21/17. (C/M to Tim Tawain Tellis)(ABF)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
TIM TAWAIN TELLIS,
STATE OF TENNESSEE,
On July 31, 2017, Tim Tawain Tellis (“Petitioner”) filed this pro se petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 [Doc. 1]. In compliance with the Court’s notice of
deficiency [Doc. 2], he filed a motion for leave to proceed in forma pauperis on August 17, 2017
[Doc. 3]. Thereafter, on October 17, 2017, the Court entered an order granting Petitioner’s motion
to proceed in forma pauperis and advising Petitioner that he “failed to substantially follow an
approved form in attempting to set forth his grounds for relief” [Id.]. The Court directed the Clerk
to send Petitioner a court-approved preprinted form motion and allowed Petitioner thirty days to
amend his petition to comply with the Rules Governing Section 2254 cases [Doc. 4]. The Court
forewarned Petitioner that “if he fail[ed] to timely comply with this Order, the Court will dismiss
this action for want of prosecution and failure to comply with orders of the Court, pursuant to
Federal Rule of Civil Procedure 41(b)” [Id.].1
The Federal Rules of Civil Procedure apply in the context of habeas suits to the extent
that they are not inconsistent with the Habeas Corpus Rules. See Rule 12 of the Rules Governing
28 U.S.C. § 2254.
More than thirty days have passed and Petitioner has not filed an amended pleading or
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
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 Petitioner’s failure to prosecute this action can
be attributed to his own willfulness or fault. Despite receiving this Court’s order, Petitioner failed
to submit an amended petition on the court-approved preprinted form provided to him, or respond
to the Court in any way. 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. Pro se status does not exempt a petitioner from the requirement that he comply with relevant
rules of procedural and substantive law. Hulsey v. Texas, 929 F.2d 168, 171 (5th Cir. 1991).
Accordingly, the Court finds that the first factor weighs in favor of dismissal. The second factor,
however, weighs against dismissal; since the Defendants have not yet been served or made to
appear, they have not been prejudiced by any delay. By contrast, the third factor clearly weighs
in favor of dismissal, as Petitioner has failed to comply with the Court’s Order, despite being
expressly warned of the possible consequences of such a failure. Finally, the Court finds that
alternative sanctions would not be effective. Petitioner has filed a motion for leave to proceed in
forma pauperis; therefore, the Court has no indication that Petitioner 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 Petitioner’s respect for this Court’s deadlines and orders, given that the threat
of dismissal with prejudice was not effective in compelling Petitioner’s compliance. The Court
thus concludes that, in total, the factors weigh in favor of dismissal of Petitioner’s action, with
prejudice, pursuant to Rule 41(b).
AN APPROPRIATE ORDER WILL ENTER.
UNITED STATES DISTRICT
A S S
UNITED STATES DISTRICT JUDGE
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