Pillow v. Schofield et al

Filing 29

REPORT AND RECOMMENDATION: For the reasons stated below, the Magistrate Judge recommends that this case be dismissed without prejudice for failure to prosecute and to obey Court orders, and that any notice of appeal not be certified as taken in good faith. Signed by Magistrate Judge Joe Brown on 12/9/15. (xc:Pro se party by regular and certified mail.) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.) (afs)

SO

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
COLUMBIA DIVISION

TIMOTHY C. PILLOW,
Plaintiff
v.
DERRICK D. SCHOFIELD, et al.,
Defendants
TO:

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No. 1:13-0032
Senior Judge Haynes/Brown
Jury Demand

THE HONORABLE WILLIAM J. HAYNES, JR.
REPORT AND RECOMMENDATION
For

the

reasons

stated

below,

the

Magistrate

Judge

recommends that this case be dismissed without prejudice for
failure to prosecute and to obey Court orders, and that any notice
of appeal not be certified as taken in good faith.
BACKGROUND
On April 8, 2015, the Plaintiff filed his complaint
against a number of individuals in the prison system in forma
pauperis. Upon initial review, the Plaintiff was allowed to proceed
in forma pauperis, but all of his complaints were dismissed with
prejudice except for the Plaintiff’s claim for loss of sentence
credit and property. These claims were dismissed without prejudice
for lack of exhaustion. Because of the dismissal of the claims
service of process never issued (Docket Entry 4). The Plaintiff
subsequently appealed the decision to dismiss his complaint (Docket
Entry 10).
On

appeal,

the

Sixth

Circuit

affirmed

the

District

Court’s ruling with the exception that the Sixth Circuit allowed

Plaintiff’s claims for damages for loss of good time credit to
proceed (Docket Entry 21). This decision was issued as a mandate on
July 17, 2015 (Docket Entry 22).
Subsequently, the District Judge referred the matter to
the undersigned to enter a scheduling order and to issue a report
and recommendation on any dispositive matters (Docket Entry 23).
On August 17, 2015, the undersigned issued an order
pointing out that service of process had never been accomplished
and the Clerk was directed to send the Plaintiff service packets,
and the Plaintiff was directed to return the service packets so
that service of process could be issued (Docket Entry 26). This
order was sent by both regular and certified mail. The green card
for certified mail was returned as having been received at the
prison at Wartburg (Docket Entries 27 and 28). As of the date of
this report and recommendation the Plaintiff has not returned any
service packets in this matter.
The Plaintiff has not provided any new address.1
LEGAL DISCUSSION
A court must be able to control its dockets and cases at
some point must be brought to a conclusion. In this case the
Plaintiff was directed to return service packets on August 17,
2015, and it appears that this order was served on him. It is now
almost 4 months later and the Plaintiff has taken no further action

1

The prison system indicates that the Plaintiff is presently
incarcerated at the Turney Center Industrial Complex, 1499 R.W. Moore
Memorial Rt. Highway, Only, Tennessee 37140-4050.

2

in this case. Although the Plaintiff filed one change of address
and requested the status of his case (Docket Entry 20) in September
of 2014, the Plaintiff has not provided a new address nor returned
the service packets.
A dismissal with or without prejudice is a drastic remedy
and before the court contemplates dismissing an action under Rule
41(b) the Court must specifically consider:
(1) whether the party’s failure to cooperate is due
to willfulness, bad faith, or fault;
(2) whether the adversary was prejudiced by the
dilatory conduct of the party;
(3) whether the dismissed party was warned that
failure to cooperate could lead to dismissal; and
(4) where the less drastic sanctions were imposed or
considered before dismissal was granted.
Tetro v. Elliott Popham Pontiac, 173 F.3d 988 (6th Cir.
1999).
The Plaintiff was given a direct order to return service
packets, which he has apparently ignored. The order was sent to the
address the Plaintiff provided, and the certified mail was not
returned

with a notation that the address was invalid. The

Plaintiff had provided changes of address previously, so the
Plaintiff’s failure to provide a change of address, if in fact he
had changed his address at the time the order was sent, was his
responsibility.

3

No Defendant in this case has been served and the passage
of time will certainly not help them prepare a defense.
While the Plaintiff was not specifically warned that
failure

to

obey

Court

orders

could

result

in

dismissal,

nevertheless the Plaintiff was clearly on notice that without
returning the service of process packets his case could not
proceed. Although the Magistrate Judge has considered a dismissal
with prejudice as the appropriate sanctions, he will not recommend
that the dismissal be with prejudice, but only without prejudice.2
RECOMMENDATION
For

the

reasons

stated

above,

the

Magistrate

Judge

recommends that this case be dismissed without prejudice for
failure to prosecute and to obey Court orders.3
Under Rule 72(b) of the Federal Rules of Civil Procedure,
any

party

has

14

days

from

receipt

of

this

Report

and

Recommendation in which to file any written objections to this
Recommendation with the District Court. Any party opposing said
objections shall have 14 days from receipt of any objections filed
in this Report in which to file any responses to said objections.
Failure to file specific objections within 14 days of receipt of
this Report and Recommendation can constitute a waiver of further

2

It is possible that due to the passage of time, even though a
complaint is dismissed without prejudice, the statute of limitations may
bar a refiling.
3

The Clerk is directed to send a copy of this Report and
Recommendation to the Plaintiff’s listed address as well as to the
address shown for the prison system at Turney Center.

4

appeal of this Recommendation. Thomas v. Arn, 474 U.S. 140 106 S.
Ct. 466, 88 L.Ed.2d 435 (1985), Reh’g denied, 474 U.S. 1111 (1986).
ENTER this 9th day of December, 2015.

/s/
Joe B. Brown
JOE B. BROWN
United States Magistrate Judge

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