McKenzie v. Day et al
Filing
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MEMORANDUM OPINION. Signed by District Judge Travis R McDonough on 12/3/18. Serviced via US Mail to James McKenzie. (KFB, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
JAMES MCKENZIE,
Plaintiff,
v.
JEFF DAY, VICTOR COX, RANDY
YORK, JD WHITE, BENNY FRENCH,
MARVIN SCOTT, EDD STAIR, STEVE
SCOT and AURTHUR BOHANAN,
Defendants.
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Case No. 3:17-cv-468
Judge Travis R. McDonough
Magistrate Judge Debra C. Poplin
MEMORANDUM OPINION
Plaintiff James McKenzie initiated this action when he filed a complaint on October 31,
2017, alleging constitutional violations pursuant to 28 U.S.C. § 1983 along with an application
for leave to proceed in forma pauperis (“IFP”) [Docs. 1, 2]. On June 20, 2018, this Court
granted Plaintiff’s IFP motion and ordered Plaintiff to file an amended complaint within twentyone days of the entry of the order [Doc. 7]. Plaintiff was forewarned that “failure to timely
comply with this [o]rder will result in the dismissal of this action for want of prosecution and
failure to comply with orders of the Court” [Id. citing Fed. R. Civ. P. 8(a)(2), (d)(1)]. The Court
further directed the Clerk to send Plaintiff a form § 1983 complaint for Plaintiff to use when
drafting his amended complaint [Id.]. The order and form were mailed to Plaintiff at the address
he listed as his current address. However, on August 21, 2018, the mail sent by this Court was
returned as “Undeliverable” with the handwritten notation “Released” [Doc. 8].
On September 28, 2018, this Court ordered Plaintiff to show cause in writing, within
fourteen days, explaining why his case should not be dismissed without prejudice for failure to
prosecute and/or failure to follow the orders of this Court [Doc. 9]. Plaintiff was again put on
notice that failure to comply with the terms of the Court’s order would result in dismissal of his
case [Id.]. On October 9, 2018, the show-cause order was returned as “Undeliverable” noting
“Unable To Forward” [Doc. 11]. Plaintiff has not filed any other response to the Court’s order
and the deadline to do so has 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.
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
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contact Plaintiff regarding his case have been unsuccessful. Whether willful or negligent,
Plaintiff has failed to update his address and/or to 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, as Plaintiff
has failed to comply with the Court’s orders, despite being expressly warned of the possible
consequences of such a failure [Doc. 7 p. 2; Doc. 9 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. There seems finds no reason to allow alternative sanctions where Petitioner has apparently
abandoned his case and shown a lack of respect for this Court’s deadlines and orders, even after
threatened with its dismissal.
The Court thus concludes that the totality of the factors weigh in favor of dismissal of
Plaintiff’s action pursuant to Rule 41(b). For the reasons discussed herein, this action is hereby
DISMISSED WITH PREJUDICE pursuant to Rule 41(b).
AN APPROPRIATE JUDGMENT WILL ENTER.
/s/ Travis R. McDonough
TRAVIS R. MCDONOUGH
UNITED STATES DISTRICT JUDGE
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